LIBRARY 

UNIVER9ITY  OF 
CALIFORNIA 
SAN  DIEGO 


8CK1PPS  (NST1TUTIO» 

KOR  ^^ 

BfOLOOlCAL  RBSBASW" 


WIT'HO^WN 


THE  PEOPLE'S 
GOVERNMENT 


Books  By  David  Jayne  Hill 

A  History  of  Diplomacy  in   the  In* 
ternational  Development  of  Europe. 

Vol.  I — The  Struggle  for  Universal  Empire. 
With  5  Colored  Maps,  Chronological  Tables, 
List  of  Treaties  and  Index.  Pp.  XXlll- 
482.  $5.00. 

Vol.  II. — The  Establishment  of  Territorial 
Sovereignly.  With  4  Colored  Maps,  Ta- 
bles, etc.  Pp.  XXIV -688.  $5.00. 

Vol.  III. — The  Diplomacy  of  the  Age  of 
Absolutism.  With  5  Colored  Maps,  Tables, 
etc.  Pp.  XXV 1-7 06.  $6.00. 

World  Organization,  as  Affected  by  the  Nature 
of  the  Modern  State.     Pp.  IX-214.     $1.50. 
Translated  also  into  French  and  German. 

The  People's  Government. 

Pp.  X-288.     $1.50  net. 


"OR 


THE   PEOPLE'S 
GOVERNMENT 


BY 

DAVID  JAYNE  HILL,  LL.D. 


D.  APPLETON  AND  COMPANY 

NEW  YORK  AND  LONDON 

1915 


COPTBIGHT,  1915,  BT 

D.  APPLETON  AND  COMPANY 


Printed  in  the  United  States  of  America 


The  corruption  of  each  form  of 
government  commences  with 
the  decay  of  its  principles. 

MONTESQUIEU. 


PREFACE 

In  every  generation  there  is  need  of  examin- 
ing anew  the  foundations  of  government.  At  the 
present  time  this  duty  is  more  imperative  than 
usual;  for  we  have  recently  been  passing  through 
a  period  of  criticism  upon  our  institutions  that 
has  created  in  some  quarters  an  unwarranted  de- 
preciation of  their  value,  in  others  a  genuine 
solicitude  for  their  preservation. 

Unfortunately,  little  comfort  is  to  be  derived 
from  the  example  of  other  nations.  A  period  of 
unprecedented  social  unrest  in  most  civilized  coun- 
tries has  been  followed  by  the  breaking  out  of  an 
armed  conflict  between  ten  Sovereign  States,  in- 
cluding five  of  the  Great  Powers  of  Europe — a 
conflict  which  for  some  of  them  involves  a  verita- 
ble struggle  for  existence. 

What  then  is  the  State,  and  what  is  it  capable 

of  becoming?     How  did  it   originate?      Whence 

is  its   authority  derived?     Is  there  any  proper 

limit  to  its  authority?     How  far  are  its  results 

vii 


PREFACE 

dependent  upon  the  forms  of  government?  Is 
there  any  possible  modus  vivendi  whereby  the 
different  classes  and  races  of  mankind  may  dwell 
together  in  peace? 

Undoubtedly  these  questions  appeal  to  the  in- 
telligence of  every  thoughtful  man,  but  they  can- 
not be  answered  in  an  off-hand  manner.  The 
State  is  not  a  product  of  individual  volition,  and 
cannot  be  transformed  in  fact  by  a  mere  change 
in  theory.  It  is,  on  the  contrary,  an  historical 
product,  and  the  examination  of  it  should  be  ap- 
proached in  an  historical  spirit.  In  order  to  grasp 
the  real  problem,  namely,  progress  toward  our 
highest  human  ideals,  it  is  necessary  to  take  into 
account  the  natural  conditions  in  which  our  hu- 
man existence  is  placed.  Only  by  an  historical 
and  comparative  study  of  the  nature  of  the  State 
can  we  comprehend  why  it  is  that  it  does  not 
actually  afford  to  mankind  that  security  of  well- 
being  which  those  who  bear  its  burdens  might 
reasonably  expect. 

To  many  it  may  seem  that,  after  all,  they  have 

little  or  nothing  to  do  with  the  State;  but  very 

brief  reflection  shows  how  much  the  State  has  to 

do  with  us.     Through  the  Law  it  touches  every 

viii 


PREFACE 

interest  and  relation  of  our  lives.  Our  family, 
property  and  social  relations  are  all  affected  by 
it.  The  Law  not  only  claims  the  privilege  of 
regulating  our  conduct  toward  others,  and  even 
our  personal  habits,  but  it  takes  our  possessions 
for  public  purposes  and  employs  the  public  pow- 
ers to  enforce  our  obedience  to  all  its  requirements. 
Whence  then  its  authority?  Is  its  right  of  com- 
mandment indefinite  and  unlimited?  If  not,  what 
are  the  limits  beyond  which  it  may  not  justly  go? 
And,  finally,  to  whose  hands  and  by  what  means 
shall  be  entrusted  the  lofty  prerogative  of  laying 
down  and  enforcing  upon  us  the  rules  according 
to  which  our  whole  existence  is  to  be  regulated? 

We  have,  no  doubt,  a  laudable  pride  in  thinking 
of  ourselves  as  "Citizens"  rather  than  "Subjects" ; 
but  if  our  citizenship  is  to  be  anything  more  than 
a  disguised  serfdom,  we  must  possess  guaran- 
tees of  our  rights  and  liberties.  What  then  is 
our  place  and  our  part  in  the  State,  and  in  rela- 
tion to  the  Law? 

Here  are  three  concepts — the  State,  the  Law 
and  the  Citizen — that  are  fundamental  to  the  real- 
ization of  any  high  ideal  of  human  society.  They 
are  not  merely  imaginary  elements  in  a  theory  of 

• 

IX 


PREFACE 

politics ;  they  are  the  existing  realities  upon  which 
any  sound  theory  of  political  relations  must  be 
based.  They  are  not  only  the  results  of  a  long 
historical  process;  they  are,  in  fact,  the  most 
important  products  of  social  evolution  in  its 
progress  from  savagery  to  civilization. 

It  is,  therefore,  with  these  three  concepts, 
which  include  all  the  essential  elements  of  the  Peo- 
ple's Government,,  that  we  are  to  deal  in  the  fol- 
lowing chapters.  The  substance  of  them  was 
originally  presented  in  the  form  of  lectures  be- 
fore the  Law  School  of  the  Boston  University 
during  the  winter  of  1915,  when  a  strong  desire 
was  expressed  that  they  might  have  a  wider  au- 
dience. In  preparing  them  for  publication,  care 
has  been  taken  to  avoid  all  technicalities  and  to 
render  them  easy  of  comprehension  by  the  gen- 
eral reader. 

Beginning  with  the  State  as  an  embodiment  of 
force,  we  shall  trace  its  development  as  a  human 
ideal.  We  shall  see  it  long  dominated  by  Law 
regarded  as  a  sovereign  decree,  until  this  con- 
ception has  been,  in  some  parts  of  the  earth  at 
least,  superseded  by  the  idea  of  Law  as  mutual 
obligation,  We  shall  witness  the  apparition  of 

x 


PREFACE 

a  wholly  new  phenomenon,  the  Citizen — the  self- 
conscious  and  responsible  constituent  of  the 
State — no  longer  mutely  receiving  commands  from 
a  being  of  a  different  order,  to  whom  he  stands 
in  the  relation  of  a  subject;  but,  as  Law-maker, 
himself  voluntarily  determining  the  limits  to  which 
Law  may  extend,  and,  as  subject  to  Law,  accept- 
ing and  respecting  the  principles  which  he  him- 
self has  adopted.  And  thus  we  shall  find,  it  is 
hoped,  in  the  Citizen  the  solution  of  the  problem 
of  human  government,  and  also  of  the  co-ordina- 
tion of  human  governments  in  the  world-organiza- 
tion of  humanity;  for  human  rights  are  not  the 
gift  of  governments,  and  governments  need  to 
be  so  organized  as  to  furnish  a  complete  security 
and  guarantee  for  human  rights.  Upon  this 
basis,  and  upon  this  basis  alone,  is  it  possible  for 
all  governments  to  submit  their  own  conduct  also 
to  the  rule  of  Law. 

In  the  light  of  the  principles  here  set  forth — 
which  in  the  main  have  entered  into  the  distinc- 
tive American  conception  of  the  State — the  ques- 
tion naturally  arises:  Will  the  experience  of  the 
United  States  of  America  be  of  any  service  to 
those  who,  when  the  battlefields  are  silent  and  the 

xi 


PREFACE 

dead  are  buried,  will  be  called  upon  to  reunite  the 
shattered  amities  of  Europe? 

An  important  lesson  of  history  is,  that  the 
value  of  a  system  of  government  does  not  reside 
exclusively  in  its  form,  but  chiefly  in  its  spirit. 
No  matter  in  what  guise  injustice  may  appear, 
whether  in  that  of  Imperialism  or  that  of  Democ- 
racy, the  exploitation  of  the  many  by  the  few,  or 
of.  the  few  by  the  many,  the  crime  remains  the 
same. 

Whatever  the  immediate  influence  of  ethical  con- 
ceptions and  moral  standards  upon  statesmanship 
may  be,  in  millions  of  hearts,  when  in  the  night- 
watches  the  question  is  wafted  from  unmarked 
graves,  "Is  it  not  possible  for  men  to  live  together 
upon  the  earth  in  peace  and  with  honor?"  the 
answer  will  be,  "Yes."  And  when  at  last  the  voices 
of  Reason  and  Conscience  are  heard,  there  will  be 
a  demand  everywhere  for  the  People's  Government. 

Washington,  D.  C., 
May,  1915. 


CONTENTS 


CHAPTER  PAGE 

I.  THE     STATE    AS    AN    EMBODIMENT    OF 

FORCE 3 

The  Development  of  Social  Status.  The 
Emergence  of  the  "State."  The  Persist- 
ence of  Primitive  Elements.  The  Assimi- 
lating Power  of  the  State.  The  Appropria- 
tion of  Religion  by  the  State.  The  State 
and  Government.  The  Preeminence  of 
Force  in  the  State.  The  Machiavellian  Con- 
ception of  the  State.  The  Influence  of  the 
Machiavellian  Conception.  Jean  Bodin's  Po- 
litical Philosophy.  The  Appeal  to  Religion 
for  Authority.  The  Repudiation  of  the 
State  as  Irresponsible  Power.  The  Trans- 
fer of  Power  to  the  People. 

II.  THE  STATE  AS  A  HUMAN  IDEAL     .       .       47 

The  Slowness  of  Political  Progress.  Prog- 
ress and  Retrogression.  The  Substitution  of 
Thought  for  Force.  The  Seat  of  Public  Au- 
thority. The  Theory  of  Divine  Right.  Sov- 
ereignty Conceived  as  Inherent  in  the  Body 

xiii 


CONTENTS 

CHAPTER  PAGE 

Politic.  The  State  as  a  Responsible  Entity. 
The  True  Nature  of  Authority.  The  Im- 
personality of  Authority.  The  Foundation 
of  the  State. 

III.  LAW  AS  A  SOVEREIGN  DECREE     .       .      91 

Law  Conceived  as  Commandment.  The  Myth 
of  Absolute  Sovereignty.  The  Genesis  of 
Popular  Sovereignty.  Absolute  Sovereignty 
a  Denial  of  Human  Rights.  ..The  True 
Foundation  of  the  State.  The  Relation  of 
Rights  to  Law.  The  Supremacy  of  Law. 

IV.  LAW    AS    MUTUAL    OBLIGATION      .       .     135 

The  Intuition  of  Obligation.  The  Appli- 
cation to  Experience.  The  Right  to  Life. 
The  Right  to  Liberty.  The  Right  to  Prop- 
erty. The  Problem  of  Partition.  The  In- 
justice of  Monopoly.  The  Relation  of  Mo- 
nopoly to  Law.  The  Alleged  Community  of 
Property.  The  Necessity  of  a  Fundamental 
Law.  The  Nature  of  a  Fundamental  Law. 
The  Constitution  as  a  Guarantee  of  Rights. 
The  Opposition  to  Fundamental  Law. 

V.  THE   CITIZEN   AS   A   LAW-MAKER      .       .     181 

Respect  for  the  Constitution  as  the  Guaran- 
tor of  Liberty.  The  Surcharging  of  Funda- 
mental Law.  The  Extension  of  Guarantees 
to  Emancipated  Slaves.  The  Effect  of  Con- 

xiv 


CONTENTS 

CHAPTER  PAGE 

stitutional  Guarantees.  Attacks  upon  Funda- 
mental Law.  The  Nature  of  the  Opposition 
to  the  Constitution.  Alleged  Constitutional 
Barriers  to  Reform.  The  Relation  of  Re- 
form to  Public  Opinion.  The  Conflict  of 
Constitutionalism  with  Imperialism.  Prin- 
ciples and  Personalities.  The  Danger  of 
Authoritative  Democracy.  Government  by 
Official  Oligarchy. 

VI.    THE   CITIZEN   AS   SUBJECT   TO   LAW      .     233 

The  Character  of  the  American  Revolution. 
The  Character  of  the  French  Revolution. 
The  Constitution  a  Bar  to  Revolution.  The 
Attack  on  the  Judicial  Authority.  Alleged 
Usurpation  of  the  Supreme  Court.  The  Al- 
leged "  Judicial  Oligarchy."  The  Value  of 
the  Judicial  Function.  The  Doctrine  of 
"  Judicial  Supremacy."  Obstacles  to  Judi- 
cial Supremacy.  The  Danger  of  Recur- 
rent Absolutism. 

INDEX  >      ,.:      ,.      ,.     377 


THE    STATE    AS    AN    EMBODIMENT 
OF    FORCE 


THE    STATE    AS    AN    EMBODIMENT    OF    FORCE 

Until  recent  years  it  was  the  custom  to  re- 
gard all  human  institutions  as  the  products 
of  conscious  intelligence.  Today  we  are 
aware  of  the  fact  that  in  many  phases  of 
human  development  the  role  of  conscious  re- 
flection was  originally  very  slight.  In  its 
primitive  stages  human  life  depended  in 
great  part  upon  the  instincts  shared  by  man 
with  his  humbler  fellow-creatures  of  the  ani- 
mal world.  Modes  of  existence  respecting 
such  primary  needs  as  food,  shelter,  and  de- 
fense were  influenced  chiefly  by  urgent  ne- 
cessities enforced  by  the  natural  environ- 
ment. All  the  elemental  arts  grew  out  of 
these  necessities.  For  science  there  was  as 
yet  no  place. 

3 


THE    PEOPLE'S    GOVERNMENT 

It  is  idle,  therefore,  in  framing  theories  of 
the  origin  and  essential  nature  of  the  State, 
to  place  emphasis  upon  abstract  ideas,  and 
to  imagine  that  primitive  communities — or 
any  communities  until  recent  times — busied 
themselves  with  problems  of  government  and 
the  fabrication  of  laws.  It  was  only  grad- 
ually, through  a  long  process  of  time,  and 
parallel  with  human  development  along 
other  lines,  that  any  community  of  men  ar- 
rived at  a  stage  of  social  consciousness  suffi- 
ciently clear  and  intense  to  grasp  the  mean- 
ing of  law,  either  in  its  natural  or  its  juristic 
sense. 

It  was  in  the  period  of  semi-conscious  and 
unreflecting  social  development  that  were 
generated  most  of  the  abiding  social  in- 
stincts, such  as  fear  of  the  strong,  dread  and 
distrust  of  the  stranger,  the  impulse  to  de- 
fend the  community  from  attack,  and  attach- 
ment to  the  tribe.  These  primary  instincts 
of  society  are  the  most  persistent.  Essential- 


STATE    AS    EMBODIMENT    OF    FORCE 

ly  local  in  their  origin,  they  spontaneously 
resist  the  idea  of  more  extended  unity.  Even 
much  reflection  upon  advantages  to  be 
gained  from  wider  association  often  fails  to 
overcome  them.  The  stranger  long  con- 
tinues to  be  regarded  as  an  enemy. 

THE    DEVELOPMENT    OF    SOCIAL    STATUS 

When,  finally,  the  period  of  reflective  con- 
sciousness is  reached  by  a  primitive  com- 
munity, it  is  evidently  already  subject  to 
law;  but  it  is  a  form  of  law  imposed  chiefly 
by  natural  necessity.  Unconsciously,  how- 
ever, without  purpose  or  definite  intention, 
a  status  has  been  created,  in  which,  if  there 
are  marked  differences  in  the  powers  of  in- 
dividuals, there  are  corresponding  differences 
in  their  positions  in  the  community.  The 
weak  have  unconsciously  been  made  subject 
to  the  strong,  and  it  is  the  will  of  the  stronger 
that  rules  the  group.  If  a  neighboring  tribe 


THE    PEOPLE'S    GOVERNMENT 

is  conquered,  it  is  reduced  to  slavery.  Caste 
is  thereby  established,  privilege  is  asserted 
and  exercised,  and  there  is  one  code  of  con- 
duct for  the  ruler  and  another  for  the  ruled. 
Self-preservation  favors  the  progressive  cen- 
tralization of  power  in  the  hands  of  the  rul- 
ing class.  Thus  is  gradually  built  up  a 
system  of  relations  based  on  superior  force. 
Ability  to  compel  obedience  to  an  order  is 
soon  recognized  as  rightful  authority;  and 
the  power  of  command,  accorded  freely  for 
the  common  good  in  time  of  war,  becomes  a 
permanent  possession  of  the  chiefs  in  time  of 
peace.  Rivalry  between  them  eliminates  the 
less  powerful  competitors  for  headship,  or 
reduces  most  of  them  to  a  position  of  subor- 
dination, rendered  effective  and  permanent 
by  the  domination  of  the  supreme  leader,  who 
preserves  his  theoretical  supremacy  by  con- 
ceding to  these  subordinates  local  authority 
so  long  as  it  is  coupled  with  acknowledged 
subjection  to  himself. 

6 


STATE    AS    EMBODIMENT    OF    FORCE 
THE   EMERGENCE   OF   THE    "STATE" 

The  status  thus  created  is  the  beginning 
of  the  "State"  in  its  accepted  historic  sense. 
Primarily,  it  is  the  product  of  contending 
forces,  at  first  purely  unconscious  and  in- 
stinctive, but  finally  becoming  aware  of  the 
advantages  afforded  by  the  possession  of 
personal  supremacy  and  its  recognition  by 
others,  with  a  progressive  acquisition  of  the 
means  by  which  it  may  be  more  effectively 
sustained  and  extended. 

In  the  first  stages  of  the  evolution  of  the 
State  there  is  no  evidence  of  any  "contract,'* 
express  or  tacit ;  or  of  any  convention  of  any 
kind.  Nor  is  there  any  evidence  of  a  concep- 
tion of  law  as  a  consciously  accepted  rule  of 
action.  Law  there  is,  but  it  is  simply  the 
mode  of  behavior,  conditioned  and  deter- 
mined by  the  operation  of  unconscious  forces ; 
and,  therefore,  closely  analogous  to  natural 
law  in  its  scientific  sense,  as  the  rule  of  se- 

7 


THE    PEOPLE'S    GOVERNMENT 

quence  in  the  realm  of  physical  causation. 
The  human  mind,  in  the  plenitude  of  its 
powers,  has  not  yet  been  brought  into 
action;  and,  in  this  period,  the  community 
has  not  attained  complete  self-conscious- 
ness. 

The  State,  then,  is  older  than  philosophy, 
older  than  art,  older  than  a  generally  exer- 
cised reflective  consciousness.  Men  did  not 
consciously  create  it,  they  were  born  into  it. 
It  developed  as  they  matured.  The  State  is 
a  primal  reality,  practically  coeval  with  man 
as  a  social  being. 

Such  being  its  origin,  its  primal  law  is 
force.  For  a  long  period  men  acted  as  they 
must,  rather  than  as  they  would.  In  the 
struggle  for  existence  the  first  law  was  nat- 
ural law.  The  long  arm,  the  strong  hand, 
the  fleet  foot,  the  heavier  bulk — these  were 
the  titanic  forces  that  laid  the  foundations  of 
the  State.  War  with  wild  beasts,  the  conflicts 
over  the  possession  of  their  remains — these 

a 


STATE    AS    EMBODIMENT    OF    FORCE 

formed  the  first  hard  school  in  which  the 
science  of  politics  learned  its  A,  B,  C,  and 
for  long  ages  all  its  literature  was  spelled 
in  the  runic  letters  first  traced  by  the  prim- 
itive weapons  of  the  Stone  Age  upon  the 
field  of  battle. 

THE    PERSISTENCE    OF    PRIMITIVE    ELEMENTS 

Will  it  ever  be  possible  to  write  the  history 
of  the  State  in  other  characters?  Certainly, 
it  cannot  be  disputed  that  for  thousands  of 
years  it  continued  to  be  recorded  almost  en- 
tirely in  these.  During  centuries  upon  cen- 
turies of  time,  who  ever  ruled  except  through 
the  possession  of  superior  force?  Is  it  even 
now  possible  to  dispense  with  physical  cate- 
gories in  the  exposition  of  political  science? 
The  "ruler"  and  the  "ruled" — the  impres- 
sive antithesis  of  strength  and  weakness — 
persist  through  all  the  sequence  of  rising 
and  fallen  kingdoms  and  empires.  Here 

9 


THE    PEOPLE'S    GOVERNMENT 

lies  the  key  of  history — dynasties  dating 
from  the  battlefield  and  perishing  before 
some  new  paladin  better  armed,  more  nu- 
merously followed,  or  still  heroic  with  the 
strength  of  untamed  youth,  bearing  down  to 
defeat  and  death  the  senile  victims  of  luxury 
and  debauchery,  sustained  in  power  only  by 
the  illusion  of  a  multitude  too  feeble  to  over- 
come its  own  fears  of  possible  destruction  in 
case  of  resistance. 

It  would  be  unprofitable  to  review  the 
pageant  of  conquerors  and  the  conquered 
which  by  preeminence  has  long  called  itself 
"history" — the  succession  of  decisive  battles 
upon  which  are  hinged  the  great  periods  in 
the  life  of  mankind — events  which,  almost 
exclusively,  men  have  thought  worthy  in  the 
long  roll  of  human  achievements  of  being 
remembered  and  recorded.  The  generaliza- 
tion is  too  self-evident  to  require  argument: 
the  archives  of  the  world,  down  to  a  very 
recent  period,  consist  of  the  story  of  trium- 

10 


STATE  AS  EMBODIMENT  OF  FORCE 

phant  force,  flaunting  its  banners  to  the  seat 
of  power,  and  taking  possession  of  the  earth 
in  the  name  of  the  State. 

The  language  of  history,  symbolic  or  ar- 
ticulate, is  largely  a  survival  of  the  primitive 
forms  of  expressing  power.  "I  sing  of 
arms,"  begins  the  famous  epic  designed  to 
celebrate  the  foundation  of  the  world's  great- 
est empire.  The  wolf  stands  sponsor  for  the 
State,  and  nourishes  its  founders.  The  eagle, 
swiftest  of  birds,  symbolizes  its  majesty. 
The  lion,  strongest  of  animals,  is  set  in  stone 
or  bronze  to  guard  the  city's  gates.  The 
dart,  the  mace,  the  spear,  the  sword,  the 
battle-axe,  form  the  sign  manual  of  the 
State's  omnipotence,  are  figured  in  the  seal 
placed  upon  its  property,  and  furnish  the 
symbolism  of  its  coat  of  arms,  expressing  its 
power  to  defend  its  possessions  against  all 
comers — a  token  of  caution  to  the  would-be 
trespasser.  The  sense  of  sight  alone  is  not 
a  sufficient  medium  for  the  proclamation  of 

11 


THE    PEOPLE'S    GOVERNMENT 

the  power  of  the  State.  The  battle-cry,  the 
beating  and  rattling  of  drums,  the  thunder 
of  artillery,  voice  its  power  to  compel  or  an- 
nihilate. The  ambassador  is  welcomed  at 
the  palace  gate  by  a  salute  that  couples 
friendly  salutation  with  the  undertone  of 
formidable  strength  in  the  roar  of  cannon. 
Among  the  Byzantines  the  foreign  envoy, 
surrounded  by  mailed  warriorS,  was  led  by 
an  escort  of  troops  from  the  frontier  through 
well-guarded  defiles,  over  narrow  bridges, 
through  stone  gateways,  by  a  long  detour, 
into  the  capital,  where  great  bodies  of  in- 
fantry and  cavalry,  changing  their  costumes 
and  returning  again  and  again  to  the  field  of 
review,  were  deployed  before  him,  in  order 
to  impress  him  with  the  inexhaustible  power 
of  the  Empire,  and  with  the  thought  that 
whatever  consideration  he  might  have  rea- 
son to  expect,  that  consideration  would  be 
an  act  of  grace  and  not  a  deed  of  compul- 
sion. 

12 


STATE    AS    EMBODIMENT    OF    FORCE 

THE     ASSIMILATING     POWER     OF     THE     STATE 

Originally  a  military  supremacy,  the  au- 
thority of  the  State  does  not  rest  satisfied 
with  the  power  to  exact  tribute  and  compel 
obedience  by  the  exercise  of  superior  phys- 
ical force  alone.  It  keeps  pace  with  the 
whole  onward  march  of  society,  carefully 
estimates  the  value  of  all  its  phases  of  men- 
tal development,  and  promptly  appropriates 
all  its  newly  generated  powers  of  achieve- 
ment. If  the  mechanical  arts  show  improve- 
ment, the  State  immediately,  and  first  of  all, 
applies  them  to  the  strengthening  of  its  own 
forces.  If  a  man  of  letters  manifests  dis- 
tinguished talent,  it  is  at  once  appropriated 
for  the  glorification  of  the  State.  Great  ar- 
tists are  made  to  add  to  its  embellishment, 
great  thinkers  to  justify  its  claims  to  respect 
and  obedience,  great  poets  to  sing  its 
praises,  great  lawyers  to  defend  the  rightful- 
ness  of  its  authority.  There  is  no  source  of 

13 


THE    PEOPLE'S    GOVERNMENT 

power  at  which  it  does  not  seek  to  refresh 
its  strength,  and  upon  which  it  does  not  place 
the  sign  of  its  possession. 

So  true  and  so  evident  is  this,  that,  spon- 
taneously, by  common  consent,  the  word 
"civilization,"  the  process  or  result  of  civiliz- 
ing, has  come  to  stand  for  the  totality  of  hu- 
man culture,  as  distinguished  from  barbar- 
ism, the  condition  of  society  where  the  State 
has  not  accomplished  this  work  of  stimula- 
tion and  appropriation.  It  is  historically 
necessary  to  say  the  "State,"  because  this 
progress  has  been  made  nowhere  where  the 
State  did  not  previously  exist. 

And  here  we  are  able  to  see  what  it  is  that 
has  justified  and  still  continues  to  commend 
the  existence  of  the  State.  Primarily  found- 
ed on  the  idea  of  force,  and  always  includ- 
ing that  element  as  essential  to  it,  the  State 
does  not  rely  upon  physical  force  alone,  but 
aspires  to  the  control  of  all  the  powers  which 
influence  the  activities  of  men, 

14 


STATE    AS    EMBODIMENT    OF    FORCE 

It  has  been,  and  still  is,  the  essential  pre- 
requisite of  civilization.  It  is,  in  fact,  the 
chief  agent  of  human  progress.  To  the 
rapacity  of  the  individual  and  of  groups  of 
individuals  it  opposes  its  prohibitions.  To 
the  artificer,  it  says:  "Work  on  in  peace, 
improve  your  workmanship."  To  the  artist : 
"Seek  and  find  beauty  in  form  and  color,  and 
give  it  perfect  expression."  To  the  poet: 
"Sing  of  all  that  is  great  and  heroic  in  life." 
To  the  thinker:  "Apply  your  faculties  to 
the  great  problems  of  existence,  and  elevate 
the  multitude  by  the  nobility  of  your 
thought."  But  to  all  of  these  it  has  usually 
said:  "Exercise  all  your  native  powers,  vig- 
orously, constantly,  and  fruitfully;  but,  see 
to  it,  that  you  think  and  say  nothing  ill  of 
me!" 

THE    APPROPRIATION    OF    RELIGION    BY    THE 
STATE 

In  one  great  branch  of  human  culture, 
religion,  the  State  has  frequently,  and  in 

15 


THE    PEOPLE'S    GOVERNMENT 

fact  usually,  claimed  a  large  right  of  super- 
intendence, at  the  same  time  asserting  the 
necessity  of  maintaining  its  own  supremacy. 
Religious  faith,  on  the  other  hand,  rising 
above  the  merely  personal  interests  of  the 
individual,  and  laying  hold  of  what  is  most 
deep,  most  constant,  and  most  mysterious 
in  human  existence,  has  always  challenged 
mere  human  power,  however  strong  and 
however  well  organized.  Death,  the  extreme 
penalty  which  the  State  can  inflict  upon  the 
disobedient,  to  the  religious  devotee  is  merely 
the  door  of  entrance  into  another  form  of 
existence,  where  faith,  courage,  and  sacrifice 
are  to  receive  their  reward.  Here,  then,  the 
State  has  sometimes  found  an  irreconcilable 
adversary — a  foe  to  its  pretensions  and  a 
rival  to  its  authority.  The  empire  of  souls 
has,  therefore,  always  been  of  interest  to  the 
State,  and,  in  proportion  as  that  has  become 
formidable,  it  has  been  thought  necessary 
either  to  suppress  or  to  appropriate  it. 

16 


STATE    AS    EMBODIMENT    OF    FORCE 

What  the  State  has  gained,  or  seemed  to 
gain,  by  alliance  with  religion,  religion  has 
usually  lost  through  the  predominance  of 
the  State.  This,  in  spite  of  the  inherent 
potency  of  religious  feeling,  has  been  in- 
evitable; for  the  State  could  never  tolerate 
any  power  superior  to  its  own,  and  its  aims 
and  interests  have  never  been  quite  coinci- 
dent with  those  of  religion.  In  truth,  re- 
ligion, except  when  completely  conquered 
and  reduced  to  a  position  of  abject  servitude 
to  the  State,  has  often  been  so  bold  as  to  re- 
pudiate State  control,  claiming  as  its  own 
domain,  under  the  sway  of  a  Higher  Power, 
the  whole  realm  of  the  inner  life  of  thought 
and  feeling,  and  resigning  to  its  rival  only 
the  outer  relations  of  men  as  alone  subject 
to  its  jurisdiction. 

The  conflict  between  these  two  claims  to 

obedience  has  been  as  prolonged,  as  general, 

and  as  tragic  as  the  contests  between  rival 

States.     Neither   has   in   the   end   greatly 

3  17 


THE    PEOPLE'S    GOVERNMENT 

profited  by  their  union,  which  has  nearly 
always  proved  to  be  a  merely  transient  com- 
promise. The  theocratic  State  has  shown 
itself  to  be  the  rudest,  narrowest,  and  most 
oppressive  form  of  power;  for,  from  the  mo- 
ment the  State  has  attempted  to  take  pos- 
session of  the  inner  life,  and  to  impose  its 
arbitrary  decrees  upon  all  that  is  personal 
in  belief,  sentiment,  loyalty,  vand  devotion, 
it  has  begotten  hypocrisy,  formalism,  and 
moral  cowardice;  thus  ultimately  choking 
the  well-springs  of  sincere  religious  faith  by 
destroying  the  freedom  of  the  spirit  in  its 
search  for  truth.  In  the  end,  however,  wher- 
ever the  union  between  Church  and  State 
has  been  unlimited,  it  has  been  the  State 
that  has  ultimately  triumphed.  And  the 
reason  for  it  is  evident.  Religion  is  not,  and 
cannot  be,  identified  with  outward  forms 
and  organization.  The  further  the  alliance 
is  pressed,  the  more  mere  forms  and  organ- 
ization triumph ;  religion,  which  is  essentially 

18 


STATE    AS    EMBODIMENT    OF    FORCE 

an  expanding  life  drawing  its  sustenance 
from  the  unseen,  is  cramped  and  atrophied. 
The  State  aims  at  mechanism,  which  light- 
ens its  task  of  control ;  but  religion  perishes 
when  it  is  brought  under  the  bondage  of 
merely  mechanical  devices. 

THE    STATE   AND   GOVERNMENT 

The  State,  as  power,  must,  no  doubt,  al- 
ways act  in  its  own  defense,  must  protect 
its  own  existence.  This  is,  indeed,  neces- 
sary to  the  well-being  of  society;  for  the 
State  means  order,  security,  the  enjoyment 
by  the  individual  of  a  part  at  least  of  the 
fruits  of  his  own  labors.  The  destruction 
of  the  State  results  in  anarchy,  which  means 
the  ruin  of  society. 

The  State  is  not  a  mere  abstraction;  it 
is  everywhere  a  concrete  and  tangible  form 
of  existence.  Its  forms  may  vary,  but  form 
it  must  always  have.  Its  organs  are  mul- 

19 


THE    PEOPLE'S    GOVERNMENT 

tiple,  but  organs  there  must  always  be. 
When  we  set  out  to  seek  it,  we  come  at  once 
in  contact  with  persons,  who  claim  to  rep- 
resent it.  If  you  would  address  the  State, 
you  must  speak  to  them.  If  you  would 
change  the  State,  you  must  influence  them. 
If  you  would  reform  the  State,  you  must 
sometimes  antagonize  them.  These  persons 
are  not  the  State ;  they  are  the  government. 
Governments  are  of  different  kinds,  good 
and  bad,  weak  and  strong,  progressive  and 
reactionary.  They  possess  all  the  qualities 
— that  is,  all  the  virtues  and  all  the  vices— 
of  persons,  for  the  reason  that  they  are  per- 
sons. Governments  can  never  be  much  bet- 
ter or  much  worse  than  the  persons  who 
compose  them.  Wisdom  and  folly,  loyalty 
and  dishonor,  greed  and  self-sacrifice,  suc- 
ceed each  other  in  the  control  of  political 
power;  and  the  State,  and  the  people  who 
compose  the  community,  must  endure  all 
this.  It  is  the  price  of  civilized  existence! 

20 


STATE    AS    EMBODIMENT    OF    FORCE 

Still,  governments  are  not  always  quite 
as  good,  or  quite  as  bad,  as  the  persons  who 
compose  them.  Something  depends  upon 
the  form  in  which  they  are  cast,  which  may 
either  extend  or  limit  the  powers  of  per- 
sons within  the  State.  The  three  great 
types  are,  of  course,  monarchy,  oligarchy, 
and  democracy;  which,  by  their  very  names, 
express  a  variation  in  the  concentration  or 
diffusion  of  power  exercised  by  the  govern- 
ment. These  types,  though  nominal,  sel- 
dom exist  in  perfect  purity;  for  in  every 
State  the  council  influences  the  monarch, 
the  leader  influences  the  ruling  class,  and 
the  masses  of  the  people  act  and  are  acted 
upon  in  a  manner  which  affects  the  des- 
tinies of  the  State. 

THE   PREEMINENCE   OF   FORCE   IN   THE   STATE 

The  important  point  to  consider  at  this 
time  is,  that,  however  it  may  be  localized  or 

21 


THE    PEOPLE'S    GOVERNMENT 

distributed,  it  is  force  which  always  re- 
mains, under  every  form  of  government, 
the  effective  attribute  of  the  State,  and  the 
one  by  which  it  is  preeminently  character- 
ized. Of  this  fact  there  cannot  be  the 
slightest  doubt.  Monarchies,  oligarchies', 
and  democracies  alike  claim  to  represent, 
and  if  they  be  actual  governments,  do  rep- 

t 

resent,  the  whole  force  of  the  community. 
If  this  were  not  so,  the  distinction  between 
forms  of  government  would  be  of  little 
moment.  What  renders  it  important  is, 
that  the  omnipotence  of  the  State  is  in  ques- 
tion. Shall  its  power  be  limited,  or  shall 
it  be  unlimited?  Shall  it  be  concentrated, 
or  shall  it  be  divided?  Shall  it  be  heredi- 
tary, or  shall  it  be  elective?  Shall  it  be 
accorded  for  a  long  time,  or  be  subject  to 
frequent  changes  in  the  government? 
These  are  the  fundamental  questions  of 
political  organization,  and  it  is  of  conse- 
quence to  ask  them  anew  from  time  to  time. 


Let  there  be  no  illusion  regarding  the 
affinities  of  different  forms  of  government 
as  respects  the  possession  of  power.  It  is 
an  error  to  imagine  that  monarchy  is  more 
greedy  of  omnipotence  than  oligarchy,  or 
oligarchy  than  democracy.  The  history  of 
the  world  is  an  overwhelming  refutation  of 
such  a  misconception.  The  possession  of 
power  is  absolutely  essential  to  the  State, 
which  can  never  be  governed  by  phrases 
and  formulas.  As  for  its  distribution,  that 
is  another  question;  and  the  kind  and  de- 
gree of  distribution  called  for  by  a  given 
community  will  depend  upon  the  degree  of 
equality  or  inequality  of  its  constituent 
members,  the  general  intelligence  they  may 
possess,  their  devotion  to  public  interests, 
and  many  other  special  circumstances;  but, 
in  no  case,  will  the  State,  as  a  State,  freely 
permit  its  power  to  be  alienated  or  dimin- 
ished or  brought  into  question.  It  will 
claim,  even  though  the  government  be  a 

23 


THE    PEOPLE'S    GOVERNMENT 

pure  democracy,  and  all  the  more  because  it 
is  a  pure  democracy,  entire  freedom  from 
every  form  of  external  coercion,  and  the 
unconditional  exercise  of  its  perfect  autono- 
my. The  right  of  self-defense  for  its  own 
reasons,  the  power  of  life  and  death  over  its 
own  constituent  members,  the  right  to  de- 
fine and  punish  treason,  the  prerogative  of 
laying  tribute  and  distributing  the  proceeds 
— all  these  have  been  and  will  be  as  com- 
pletely and  as  unreservedly  exercised  by  a 
democracy  as  by  the  most  absolute  sover- 
eign. The  State  that  disavows  its  own  au- 
tonomy thereby  ceases  to  be  a  State.  There 
must  be  somewhere  a  power  that  is  superior 
to  all  other  powers,  and  which  can  command 
the  obedience  of  all. 

THE     MACHIAVELLIAN     CONCEPTION     OF     THE 
STATE 

Of  this  truth  there  has  never  been  any 
serious  question;  but  how  to  set  it  forth. 


STATE    AS    EMBODIMENT    OF    FORCE 

how  to  formulate  it,  and  how  to  justify  it 
to  the  human  mind — that  has  been  a  prob- 
lem which  has  long  occupied  the  thoughts 
of  men. 

For  a  long  period  the  simple  fact  of  the 
imperium,  or  right  of  command  proceeding 
from  the  power  to  enforce  commands,  ap- 
peared sufficient.  Order,  which  is  the  first 
social  necessity,  requires  the  observance  of 
rules  of  conduct  on  the  part  of  the  commun- 
ity. Unless  these  are  in  some  way  ordained, 
and  unless  obedience  to  them  can  be  en- 
forced, order  is  impossible,  life  and  prop- 
erty are  in  constant  danger,  and  rapine  will 
inevitably  ensue.  Enemies  of  order,  both 
within  and  without  the  community,  must  be 
guarded  against,  resisted,  repressed,  and 
punished.  This  was  long  esteemed  to  be 
the  function  of  the  "prince,"  who  thereby 
became  the  "savior  of  society." 

This  is,  in  effect,  Machiavelli's  whole  con- 
ception of  the  State.  To  his  mind  it  is  es- 

K! 


THE    PEOPLE'S    GOVERNMENT 

sentially  non-moral.  Its  one  problem  is  to 
maintain  itself,  in  order  to  accomplish  its 
task,  which  is  to  compel  obedience.  For 
this  purpose  it  may  ally  itself  with  religion, 
but  not  to  the  extent  of  becoming  a  mere 
subject  power.  If  the  religious  faith  of  the 
people  prompts  them  to  obey  the  State,  it 
may  well  be  cultivated  and  promoted;  but 
only  as  a  means  to  the  one  end  which  the 
State  has  in  view,  namely,  the  augmentation 
of  its  own  power  and  resistance  to  all  that 
opposes  it. 

A  strong  State,  the  great  Florentine  con- 
tends, can  never  be  produced  by  its  own 
component  elements.  The  reason  for  this 
is  that  men  are  essentially  corrupt  and  self- 
seeking.  Each  will  pursue  his  own  inter- 
est, and  the  common  good  will  be  neglected. 
There  is  necessary,  therefore,  a  powerful 
despot,  who  is  able  to  impose  his  will  upon 
all  others.  He  alone  can  produce  and 
maintain  order,  and  for  this  any  means  may 


STATE    AS    EMBODIMENT    OF    FORCE 

be  employed.  Deceit,  falsehood,  even  as- 
sassination, if  necessary,  are  permissible. 
Above  the  "prince"  there  is  no  law.  He  is 
the  creator  of  law.  His  will  is  law.  With- 
out him,  there  would  be  no  morality,  but 
theft,  murder,  license  in  every  form.  If  he 
did  not  possess  force  he  would  be  impotent 
to  end  them.  He  must,  therefore,  as  much 
as  possible,  and  by  every  means,  increase  his 
force.  Thus  only  can  he  maintain  the  exis- 
tence of  the  State. 


THE     INFLUENCE     OF     THE     MACHIAVELLIAN 
CONCEPTION 


However  much  our  feelings  may  revolt 
against  this  crude  form  of  political  philoso- 
phy, it  must  be  admitted  that  it  was  long 
dominant  in  Europe,  and  that  Machiavelli's 
famous  treatise,  "The  Prince"  written  in 
1513  to  restore  the  glory  of  his  beloved 
Florence — which  he  described  as  "more  cap- 

27 


THE    PEOPLE'S    GOVERNMENT 

live  than  the  Jews,  more  enslaved  than  the 
Persians,  more  divided  than  the  Athenians, 
without  a  head,  bruised,  despoiled,  lacer- 
ated, ravaged,  and  subjected  to  every  kind 
of  affliction" — has  remained  for  centuries 
the  classic  manual  of  European  statesman- 
ship. It  is  certain  that  the  Emperor 
Charles  V  and  King  Philip  ,11  of  Spain 
were  close  students  of  it.  Catherine  de 
Medici  introduced  it  into  France,  and  both 
Henry  III  and  Henry  IV  had  a  copy  of  it 
on  their  persons  when  they  were  murdered. 
Richelieu  esteemed  it  highly,  and  it  was 
known  and  studied  by  several  of  the  kings 
of  England.  Pope  Sixtus  V,  though  he 
publicly  condemned  it,  made  a  digest  of 
its  contents  in  his  own  handwriting,  and 
Queen  Christina  of  Sweden  left  a  copy  of 
it  marked  with  interesting  marginal  annota- 
tions. 

It  is,  however,  to  Machiavelli  that  we  owe 
in  part  the  subsequent  revolt  against  per- 

28 


STATE    AS    EMBODIMENT    OF    FORCE 

sonal  despotism.  In  composing  its  bible  he 
was  also  writing  its  epitaph.  The  "Alcoran 
de  Louis  XIV"  declares  the  following  lines, 
under  the  tutorship  of  Mazarin,  had  to  be 
learned  by  Louis  XIV : 

'  'My  son,  in  whom  do  you  believe?' 

"  'In  Nicholas  Machiavelli.' 

"  'Who  was  this  Nicholas  Machiavelli?' 

'The  father  of  politicians,  and  the  one 
who  has  taught  princes  the  art  of  reigning.' ' 

Thus  publicly  pilloried  as  a  system  re- 
sponsible for  the  reign  of  absolutism,  the 
teachings  of  Machiavelli  were  accepted  as 
a  concrete  statement  of  the  actual  practices 
of  monarchs,  which  were,  therefore,  the 
more  readily  condemned  by  those  who  had 
suffered  from  the  application  of  Machia- 
velli's  principles.  Frederick  the  Great,  as 
Crown  Prince,  formally  repudiated  Machi- 
avelli's  teachings  in  his  "Anti-Machiavel" ; 
but,  as  King  of  Prussia,  he  did  not  fail  to 
do  honor  to  the  Florentine  by  demonstrat- 


THE    PEOPLE'S    GOVERNMENT 

ing  that  he  considered  force,  uncontrolled 
by  ethics,  an  essential  attribute  of  the  State. 

JEAN    BODIN'S    POLITICAL    PHILOSOPHY 

It  is  not,  however,  quite  just  to  Machia- 
velli  to  load  his  name  and  memory  with  a 
burden  of  infamy  for  expounding  as  a 
theory  what  history  shows  to  have  been  the 
general  practice  of  most  of  his  contempo- 
raries, and  long  continued  to  be  considered 
essential  to  statesmanship  by  those  who 
came  after  him.  Moreover,  that  which 
made  his  exposition  most  repugnant  has 
been  substantially  embodied  in  most  subse- 
quent theories  of  the  true  nature  of  the 
State,  namely,  the  idea  that  it  is  essentially 
a  creation  of  "blood  and  iron,"  and  not  sub- 
ject to  any  law  other  than  that  of  its  own 
omnipotence. 

Jean  Bodin's  conception  of  sovereignty 
(1530-1596) — a  conception  designed  to 

30 


STATE    AS    EMBODIMENT    OF    FORCE 

veil  the  omnipotence  of  the  State  under  a 
guise  of  juristic  philosophy — is,  in  reality, 
not  widely  separated  from  it,  and  yet  it  is 
substantially  the  basis  of  the  theory  of  the 
State  which  still  prevails. 

Bodin's  aim  was  to  establish  a  reasonable 
natural  foundation  for  royal  omnipotence. 
The  principle  from  which  he  deduces  it  is 
the  idea  of  "supreme  power"  as  essential  to 
the  State,  which  he  then  tranquilly  identifies 
with  supreme  authority.  This,  he  holds, 
exists  in  every  independent  community,  and 
is  both  absolute  and  perpetual.  It  is  from 
this  source  that  all  laws  proceed.  It  is  the 
very  substance  of  the  State. 

To  such  "supreme  power"  he  gives  the 
name  "sovereignty,"  equivalent  to  the 
imperium  of  the  Roman  Law,  which  in  his 
Latin  edition  of  1591  he  calls  "majestas" 
Although  in  deducing  this  principle  he  re- 
frains from  advocating  any  particular  form 
of  government,  it  is  evident  that  "supreme 

81 


THE    PEOPLE'S    GOVERNMENT 

power"  must  be  exercised  by  a  person;  and, 
in  fact,  his  exposition  proves  to  be  only  a 
philosophic  disguise  for  the  idea  of  absolute 
royal  authority.  Still,  it  is  not  strictly 
necessary  that  "supreme  power"  be  exer- 
cised by  a  royal  person;  for  the  idea  of 
sovereignty,  as  "supreme  power,"  is  equally 
applicable  to  every  form  o£  government. 
The  future  development  of  Bodin's  prin- 
ciple, which  he  contends  is  "absolute,  in- 
divisible, and  inalienable,"  shows  that  it  can 
be  equally  applied  to  a  monarchy,  an  oli- 
garchy, or  a  democracy. 

The  defect  in  Bodin's  conception  of  sover- 
eignty is  not  that  it  is  essentially  baseless, 
but  that  it  is  a  purely  mechanical  concep- 
tion. It  belongs  to  the  category  of  might, 
but  not  to  the  category  of  right.  The 
State,  he  contends,  commands  simply  be- 
cause it  has  the  power  to  command.  But, 
if  that  be  true,  what  authority  does  it  pos- 
sess if  one  has  the  power  to  disobey?  If 

32 


STATE    AS    EMBODIMENT    OF    FORCE 

authority  is  based  merely  on  the  power  to 
compel,  there  is  equal  authority  in  the  power 
to  resist;  and  government  thus  becomes 
merely  a  problem  in  the  balance  of  mechani- 
cal forces.  The  State,  upon  this  theory, 
has  no  authority  whatever,  except  that  de- 
rived from  its  superior  force.  But  there  is 
not  in  mere  force,  even  though  it  be 
supreme,  any  right  to  command.  Can  hu- 
man nature  be  required  to  bow  before 
"supreme  power,"  merely  because,  as  power, 
it  is  supreme?  Is  it  possible  that  all  that  is 
dear  to  the  affections,  all  that  is  true  to  the 
intelligence,  all  that  is  obligatory  to  the 
moral  sense,  reason  and  conscience,  must  be 
tacitly  surrendered  and  openly  sacrificed 
merely  because  the  possessor  of  irresistible 
force  speaks  in  the  name  of  the  State?  Can 
it  be  a  duty  on  the  part  of  a  human  being 
to  obey  the  arbitrary  decrees  of  power,  sim- 
ply because  it  is  power?  It  may  be  that,  as 
a  question  of  fact,  submission  can  be  en- 

4  '          33 


THE    PEOPLE'S    GOVERNMENT 

forced;  but  can  that  mere  fact  create  an 
obligation?  How  is  it  possible  for  men  to 
respect,  much  less  to  sustain  by  their  free 
volitions,  an  institution  that  demands 
obedience  upon  such  terms?  And,  further, 
can  it  be  that,  in  their  relations  to  one  an- 
other, States — the  highest  forms  of  social 
development — are  merely  so  many  embodi- 
ments of  arbitrary  force  contending  with 
one  another  for  the  mastery  of  the  world, 
restrained  by  no  law,  subject  to  no  control, 
and  bound  by  no  obligation? 

THE    APPEAL    TO    RELIGION    FOR    AUTHORITY 

It  is  clear  that  the  idea  of  "supreme 
power,"  even  though  it  be  a  primary  and 
essential  attribute  of  the  State,  is  a  wholly 
inadequate  basis  for  the  conception  of  right- 
ful authority.  It  furnishes  neither  the  ele- 
ments necessary  for  a  logical  definition  of 
authority,  nor  the  foundation  of  an  accept- 

34 


STATE    AS    EMBODIMENT    OF    FORCE 

able  theory  of  governmental  action.  The 
mere  power  of  the  State,  even  though  it  be 
supreme,  is  no  more  worthy  of  respect,  and 
no  more  entitled  to  obedience,  than  any 
other  power ;  unless,  in  addition,  it  possesses 
attributes  of  an  entirely  different  order. 
Sovereignty,  conceived  merely  as  power  to 
compel  obedience,  may  be  and  is  essential 
to  the  State;  but  it  is  not  a  principle  from 
which  can  be  deduced  rightful  authority 
to  exact  obedience.  Either  its  professed 
rightful  supremacy  does  not  exist,  or  it 
must  be  derived  from  some  other  source. 

Very  early  in  the  process  of  political  de- 
velopment it  was  perceived  that  ability  to 
compel  action  was  not  sufficient  to  inspire 
the  assent  of  the  governed.  Even  alleged 
utility  to  the  community  was  incapable  of 
awakening  that  moral  support  which  every 
government  considers  it  expedient  to  pos- 
sess. Appeal  was,  therefore,  made  to  re- 
ligion, and  the  State  was  represented  as  a 

35 


THE    PEOPLE'S    GOVERNMENT 

divine  institution.  In  the  period  of  pagan- 
ism the  Roman  Emperors  were  regarded  not 
only  as  the  instruments  and  organs  of 
divinity,  but  as  themselves  inchoate  deities, 
to  be  apotheosized  at  death  and  admitted  to 
the  Pantheon  as  objects  of  religious  wor- 
ship. 

It  is  unnecessary  to  follow  closely  the 
historical  development  of  the  claim  that  the 
State  derives  its  authority  directly  from  the 
Divine  Will,  the  recognized  source  of  all 
power  and  all  authority.  It  would,  indeed, 
be  convenient  for  supreme  power  to  clothe 
itself  with  the  garment  of  supreme  author- 
ity, if  it  could  show  credentials  for  appear- 
ing as  an  authorized  agent  for  the  execution 
of  the  divine  commands.  It  was,  therefore, 
to  be  expected  that  the  throne  would  seek 
the  support  of  a  divine  commission. 

It  was  upon  this  ground  of  a  special  dele- 
gation of  divine  authority  that,  in  the 
seventeenth  century,  royal  absolutism  en- 

36 


STATE    AS    EMBODIMENT    OF    FORCE 

deavored  to  erect  its  foundation.  The  prin- 
ciple cujus  regio,  ejus  religio  was  a  conven- 
ient compromise  which  accorded  to  each 
sovereign  ruler  the  decision  as  to  the  form 
of  religious  faith — Catholic,  Lutheran,  or 
Calvinist — which  should  prevail  in  the  ter- 
ritory over  which  he  exercised  jurisdiction; 
and,  whatever  this  faith  might  be,  it  sup- 
plied the  monarch  with  the  same  justifica- 
tion for  the  exercise  of  his  supreme  will.  In 
a  sermon  preached  by  Bishop  Ogier  at 
Miinster,  during  the  Congress  of  West- 
phalia, Christ,  as  "King  of  kings,"  was 
represented  as  announcing  to  the  assembled 
princes:  "I  have  made  you  my  lieutenants 
in  this  world,  to  be  dispensers  of  my  justice 
upon  other  men.  I  have  placed  you  in  a 
state  that  is  hardly  lower  than  that  of  my 
angels:  they  give  impulsion  to  the  heavenly 
bodies;  you  give  motion  to  the  mechanism 
of  the  earth.  I  have  crowned  you  with 
honor  and  glory,  and  I  have  established  you 

37 


THE    PEOPLE'S    GOVERNMENT 

over  the  most  beautiful  works  of  my  hands. 
Finally,  I  have  put  under  your  feet  all 
other  mortals." 

Without  doubt,  some  of  the  princely  audi- 
tors who  listened  to  this  declaration  of  their 
"divine  right"  as  rulers,  solemnly  believed 
that  they  were  thus  divinely  appointed  to  be 
dispensers  of  justice,  and  even  strove  with 
a  good  conscience  to  perform  this  lofty  mis- 
sion; but  the  evidence  upon  which  this  as- 
sumption is  based  is  not  very  impressive  to 
the  modern  mind.  Still,  in  the  time  when 
the  ffculte  du  roi"  was  the  accepted  founda- 
tion of  the  State,  it  was  possible  for  Omer 
Talon  to  say  to  the  child  Louis  XIV:  "The 
seat  of  Your  Majesty  represents  the  throne 
of  the  Living  God";  and,  later,  for  the 
scrupulous  Lamoignon  to  declare  to  the 
young  king,  in  the  presence  of  the  Parlia- 
ment of  Paris :  "This  company  regards  you 
as  the  living  image  of  divinity."  Soon 
afterward  Bossuet  completed  the  hyperbole 

38 


STATE    AS    EMBODIMENT    OF    FORCE 

by  solemnly  affirming:  "The  royal  throne 
is  not  the  throne  of  a  man,  but  the  throne 
of  God  himself.  .  .  .  The  prince  should  ren- 
der to  no  one  an  account  of  what  he  does." 

THE    REPUDIATION    OF    THE     STATE    AS 
IRRESPONSIBLE    POWER 

It  required  only  a  short  experience  of  the 
Bourbon  dynasty  to  demonstrate  to  a  faith- 
ful and  loyal  people  the  consequences  of  this 
doctrine,  that  "the  prince  should  render  to 
no  one  an  account  of  what  he  does."  Thus 
enthroned,  the  basest  personal  passions  and 
the  most  inept  statesmanship  were  sancti- 
fied by  the  assumption  that  the  king,  as  the 
chosen  representative  of  the  Deity,  could  do 
no  wrong. 

From  this  unhappy  union  religion  suf- 
fered even  more  than  the  State,  for  both 
wrere  soon  challenged  and  overwhelmed  by 
outraged  reason  and  conscience.  The  whole 
structure  of  society  was  thus  for  a  time 

39 


THE    PEOPLE'S    GOVERNMENT 

swept  away  in  the  blood  and  fire  of  the 
French  Revolution.  The  burden  upon  faith 
had  become  too  great  to  be  borne.  In  the 
face  of  such  preposterous  contradictions 
and  such  brazen  insincerity  as  the  era  of 
absolutism  presented,  it  was  impossible  to 
respect  the  State,  and  equally  impossible  to 
accept  a  form  of  religious  belief  that 
shielded  its  vices  and  enormities.  Every 
throne  in  Europe  was  shaken  by  the  reac- 
tion. The  State,  as  irresponsible  power, 
could  no  longer  be  tolerated.  If  it  could 
not  be  radically  reformed — so  profound  was 
the  revolt  against  it — it  must  disappear  al- 
together; but  with  its  disappearance  was 
threatened  for  a  time  the  destruction  of  the 
whole  edifice  of  civilization. 

It  was  necessary,  therefore,  to  lay  new 
foundations.  "Sovereignty,"  Rousseau  had 
said,  "is  not  an  attribute  of  kings,  but  of  the 
people."  Upon  this  new  basis,  then,  the 
State  was  to  be  reconstructed. 

40 


STATE    AS    EMBODIMENT    OF    FORCE 

i 

Unhappily,  the  conception  of  sover- 
eignty remained  substantially  unmodified. 
For  the  "supreme  power"  of  kings  was  to 
be  substituted  the  "supreme  power"  of  the 
people. 

As  a  matter  of  fact,  the  people  had  be- 
come more  powerful  than  their  rulers.  It 
was,  therefore,  their  turn  to  rule;  their  turn 
to  become  the  source  of  law;  their  turn  to 
impose  their  absolute  will;  their  turn  to  de- 
fine treason,  and  to  inflict  death  as  a  punish- 
ment. 

THE  TRANSFER  OF  POWER  TO  THE  PEOPLE 

The  fact  of  this  reversal  of  positions  is 
not,  however,  so  significant  for  the  welfare 
of  the  community  as  it  may  at  first  appear. 
The  substance  of  the  State  was  not  essen- 
tially altered  by  a  mere  change  of  masters. 
Supreme  power,  which  had  previously  been 
exclusively  in  the  hands  of  monarchs,  aided 
by  their  counselors,  was,  indeed,  transferred 

41 


THE    PEOPLE'S    GOVERNMENT 

to  the  hands  of  the  people,  or  of  those  who 
were  supposed  to  represent  them;  but  the 
change  was  far  less  a  transformation  of  the 
State  than  a  mere  alteration  in  the  control 
of  its  power  to  exact  obedience. 

Call  the  roll  of  the  persons  who,  after 
the  Revolution  in  France,  became  the  chief 
depositories  of  power,  and  ask  the  question, 
"In  what  sense  was  its  exercise  amelio- 
rated?" and  you  are  immediately  impressed 
by  the  fact  that  authority,  in  any  defensible 
sense,  had  made  no  substantial  progress  in 
defining  its  essential  nature,  as  distin- 
guished from  mere  power  to  compel  obedi- 
ence. The  populace  of  Paris;  Brissot,  with 
his  policy  of  a  universal  "war  on  kings"; 
Danton,  and  the  massacres  of  the  nobility 
by  the  Commune;  Robespierre,  and  the 
"culte  de  la  Raison";  the  impersonal  reign 
of  War  and  Famine  in  the  midst  of  uni- 
versal terror;  the  Directory;  the  Consulate; 
Napoleon  Bonaparte — liberator,  emperor, 

42 


STATE    AS    EMBODIMENT    OF    FORCE 

and  conqueror  of  Europe — were  these  less 
tyrannical  than  the  King  they  had  super- 
seded? 

In  all  this  dreadful  drama,  there  is  not 
one  act  or  scene  that  has  not  had  its  de- 
fenders; not  one  that  did  not  seem  to  some 
enthusiast  to  have  a  justification  for  its 
enormity  in  still  greater  enormities  which 
it  was  intended  to  suppress.  And  behind  all 
this  continued  tragedy  there  was  always  one 
and  the  same  philosophy :  the  theory  that  the 
State  is  power,  "supreme  power,"  exercised 
in  the  name  of  some  isolated  virtue — the  re- 
dress of  wrong,  the  establishment  of  right- 
perpetual  homage  to  the  idea  of  justice;  but 
justice  ill  conceived  and  violently  adminis- 
tered ! 

Where,  then,  is  the  true  theory  of  the 
State  to  be  found?  Evidently,  it  is  not  to 
be  sought  in  the  idea  of  power  alone,  no 
matter  by  whom  it  is  possessed  and  exer- 
cised. Monarchies,  oligarchies,  and  de- 

43 


THE    PEOPLE'S    GOVERNMENT 

mocracies,  all  and  equally,  have  failed,  and 
will  always  continue  to  fail,  so  long  as  they 
cling  to  the  belief  that  power  to  command 
and  to  enforce  obedience  is  the  true  essence 
of  public  authority.  Nor  can  it  be  found 
in  the  idea  of  abstract  justice  as  a  merely 
personal  conception.  To  give  it  stability 
and  to  evoke  for  it  universal  respect,  a  lar- 
ger consensus  and  a  more  impersonal  origin 
are  demanded.  To  discover  and  to  formu- 
late the  true  nature  of  the  State,  appeal  must 
be  made  to  a  more  complete  analysis  of  the 
constitution  of  man  and  of  society  than  that 
which  is  embodied  in  the  empirical  art  of 
imposing  a  dominant  will.  The  true  prin- 
ciple of  authority  is  not  to  be  found  in  any 
attribute  of  the  ruler,  whoever  the  ruler 
may  be,  but  in  the  nature  of  the  being  who 
is  to  be  ruled.  The  ultimate  foundation  of 
the  law,  as  an  expression  of  the  power  of 
the  State,  is  to  be  sought  in  the  virtue  of 
the  citizen. 

41 


n 

THE    STATE    AS    A    HUMAN 
IDEAL 


II 

THE   STATE   AS  A   HUMAN   IDEAL 

If  society  were  a  purely  human  invention, 
and  if  the  conditions  of  existence  could  be 
determined  entirely  by  human  laws,  life  on 
this  planet  would  be  somewhat  different 
from  what  it  is.  The  more  we  reflect  upon 
the  subject,  however,  the  more  evident  it 
appears  that  the  nature  of  man  as  an  indi- 
vidual, the  essential  relations  of  men  in  their 
community  life,  and  especially  the  material 
conditions  upon  which  the  continuance  of 
life  depends,  are,  for  the  most  part,  beyond 
the  power  of  the  human  will  to  control,  or 
even  appreciably  to  change.  Nature  has  so 
completely  fashioned  her  human  product, 
and  so  bound  him  by  her  own  ties  of  instinct 
and  habit,  that  he  remains,  in  spite  of  all  the 

47 


THE    PEOPLE'S    GOVERNMENT 

efforts  of  culture,  from  generation  to  gen- 
eration, in  a  certain  sense,  the  "natural 
man.'* 

This  statement  is  intended  to  convey  the 
truth  that  the  larger  part  of  human  activ- 
ity is  the  product  of  unconscious  causes.  It 
is  not  without  interest  to  recall  how  com- 
plicated and  how  complete  the  structure  of 
the  human  body  must  be  before  individual 
consciousness  is  possible,  and  how  long  a 
time  must  elapse  after  consciousness  begins 
before  we  are  aware  of  even  the  most  ele- 
mentary conditions  of  our  own  existence. 
Manhood  itself  is  only  a  prolonged  child- 
hood. How  long,  then,  must  men  have 
waited,  how  completely  must  community 
life  have  been  developed,  before  reflective 
social  consciousness  ever  came  into  exis- 
tence? When  it  did,  the  body  politic  was 
already  there.  The  State,  in  a  rudimen- 
tary form  at  least,  had  spontaneously  come 
into  being. 

48 


THE    STATE    AS    A    HUMAN    IDEAL 

But  this  social  consciousness,  when  de- 
veloped, was  not  equally  possessed  by  all 
individuals ;  and,  in  fact,  the  communities  of 
men  are  rare,  if  they  anywhere  exist,  even  in 
the  present  stage  of  human  culture,  where 
interest  in  the  community  is  equally  dis- 
tributed. The  immediate  personal  needs  of 
the  individual,  for  the  most  part,  absorb  his 
attention  and  preoccupy  his  mind.  Only 
the  few  reflect  upon  the  general  condition 
of  society;  and  to  those  who  have  known  no 
better  fortunes,  so  long  as  customary  con- 
ditions are  not  disturbed,  these  appear  to 
be  tolerable,  and  even  satisfactory.  In- 
stinct and  habit  dominate;  the  cycle  of  in- 
dividual life  is  soon  completed;  with  each 
generation  tradition  binds  the  community 
more  firmly  to  the  past;  and  the  familiar 
thus  comes  to  be  regarded  as  the  normal, 
the  reasonable,  and  the  authoritative  order 
of  existence. 


THE    PEOPLE'S    GOVERNMENT 
THE    SLOWNESS    OF    POLITICAL    PROGRESS 

In  all  primitive  communities,  therefore, 
the  spirit  of  conservatism  prevails;  and 
wisely  so,  for  even  slight  experience  teaches 
how  infrequently  sudden  and  lasting 
changes  in  the  conditions  of  human  life  can 
be  produced  by  mere  volition.^  The  illusion 
that  thought  can  be  readily  transformed 
into  reality  is  persistent;  and  yet,  when  the 
trial  is  made,  men  quickly  discover  how 
difficult  the  process  is.  It  then  becomes 
easy  for  them  to  decide  to  accept  what  cir- 
cumstances grant  to  them,  to  adapt  them- 
selves to  stern  realities,  and  thus  maintain 
an  existence  which  a  more  spirited  effort  to 
introduce  changes  might  put  in  jeopardy. 

The  first  great  obstacle  to  social  change 
is  found  in  the  material  conditions  of  life. 
Against  this  array  of  purely  natural  forces 
the  mind  rebels  in  vain.  The  fact  that  a 
large  portion  of  every  twenty-four  hours 

50 


THE    STATE    AS    A    HUMAN    IDEAL 

must  be  spent  in  restoring  exhausted 
energies,  that  food  and  shelter  are  necessary 
to  existence,  and  that  the  individual  capable 
of  toil  and  conflict  is  closely  associated  with 
the  incapable,  who  demand  a  portion  of  his 
energy  for  their  support  and  protection, 
compels  the  units  composing  society  to  rest 
content  with  what  it  is  possible  to  obtain 
under  existing  limitations. 

Even  a  slight  material  difference  may 
prove  an  impediment  to  liberty  of  action  or 
afford  an  advantage  in  determining  social 
position,  whether  regarded  from  the  eco- 
nomical or  the  political  point  of  view.  Take 
into  account,  for  example,  the  difference 
that  existed  in  the  feudal  age  between  men 
of  equal  bodily  strength  and  equal  mental 
powers,  produced  by  a  circumstance  at  first 
thought  so  trivial  as  the  possession  of  a 
horse  and  a  suit  of  mail.  Yet  in  this  simple 
difference  lay  the  distinction  between  the 
abject  helplessness  of  the  peasant  and  the 

51 


THE    PEOPLE'S    GOVERNMENT 

power  of  compulsion  possessed  by  the  armed 
knight  or  the  country  squire,  for  whose  pro- 
tection as  a  dispenser  of  justice  the  unarmed 
man  was  willing  to  accept  the  position  of  a 
serf,  bowing  with  reverence  before  a  fellow- 
creature  upon  whose  clemency  toward  his 
proteges  hung  the  issues  of  life  and  death. 

Consider  also  for  a  moment  the  revolu- 
tion that  occurred  in  the  nature  of  the  State 
as  an  institution,  when  the  invention  of  gun- 
powder and  the  use  of  artillery  concentrated 
power  in  the  hands  of  those  who  alone  were 
able  to  possess  them.  In  the  presence  of 
this  new  set  of  material  conditions  the 
mailed  knight  was  an  anachronism. 

Unless  he  possessed  the  means  to  arm 
with  muskets  his  troop  of  vassals,  and  even 
to  provide  them  with  artillery,  the  superior- 
ity formerly  afforded  him  by  the  ownership 
of  a  horse  and  a  suit  of  armor  suddenly  dis- 
appeared. Only  a  few  powerful  princes 
could  organize  standing  armies  equipped 

52 


THE    STATE    AS    A    HUMAN    IDEAL 

with  the  new  weapons.  In  the  presence  of 
these  more  capable  protectors  the  mailed 
cavalier,  armed  with  spear  and  battle-axe, 
even  though  he  dwelt  in  a  castle,  was  a  poor 
competitor.  The  king  now  superseded  the 
feudal  overlord.  To  strengthen  his  hands 
against  the  local  despot,  from  whose  extor- 
tions he  alone  could  rescue  them,  the  people 
were  willing  to  contribute  freely  of  their 
substance.  What  they  paid  in  regularly 
assessed  taxes  was  less  than  they  had  for- 
feited in  arbitrarily  exacted  tribute,  and 
they  were  thus  made  faithful  partisans  of 
royal  supremacy.  Before  this  formidable 
concentration  and  centralization  of  power 
feudalism  gradually  vanished  away.  The 
monarch  became  the  sole  dispenser  of 
favors,  his  court  the  center  of  all  that  was 
potent  or  brilliant  within  his  realm,  his 
service  the  only  pathway  to  distinction 
within  the  State. 

In  such  conditions,  what  had  at  first  been 

53 


THE    PEOPLE'S    GOVERNMENT 

freely  accorded  by  the  people,  for  the  pur- 
pose of  obtaining  exemption,  was  demanded 
and  enforced  as  a  sovereign  right.  Mon- 
archy, in  time,  becoming  absolute,  was  even 
more  oppressive  than  feudalism  had  once 
been.  In  place  of  trivial  combats,  in  which 
a  handful  of  servile  followers  fought  body 
to  body  with  a  posse  of  equally  rude  con- 
testants, under  the  walls  of  rival  castles,  at 
whose  feet  the  medieval  villages  sheltered 
their  dependent  inhabitants,  great  armies 
were  mustered  and  led  afar  upon  ambitious 
schemes  of  world  conquest,  in  which  every 
subject  of  the  Crown  was  compelled  to  con- 
tribute without  murmuring  his  substance, 
his  service,  and,  in  case  of  need,  his  life. 

Not  until  after  large  sums  of  money 
were  needed  for  these  vast  enterprises  did 
the  will  of  the  commons  become  the  balance 
of  power  in  the  State,  able  to  determine 
peace  or  war  by  according  or  withholding 
the  needed  tribute.  It  was  by  the  triumph 

54, 


of  financial  economy  on  the  part  of  the 
people  that  in  England  parliamentary  gov- 
ernment was  finally  enforced — not  only  the 
right  of  the  people  to  be  represented  in 
Parliament,  but  the  right  of  Parliament  to 
accord  or  withhold  contributions  to  the  royal 
treasury.  Originally  the  admitted  privilege 
of  landed  proprietors  only,  with  the  growth 
of  industrialism  as  a  coordinate  producer 
and  controller  of  wealth,  parliamentary  gov- 
ernment has  finally  become — but  only  after 
long  and  bitter  struggles — the  recognized 
prerogative  of  all  civilized  peoples. 

PROGRESS    AND    RETROGRESSION 

In  the  light  of  this  short  review  of  politi- 
cal progress,  it  becomes  clear  that  no  form 
of  political  advancement  can  be  made  with- 
out regard  to  the  material  conditions  upon 
which  it  must  depend.  It  would,  however, 
be  a  serious  error  to  assume  that,  because 

55 


THE    PEOPLE'S    GOVERNMENT 

of  this  dependence,  there  is  an  inherently 
necessary  principle  of  progress,  or  any 
naturally  predetermined  process  of  political 
evolution  which  automatically  brings  to 
realization  certain  desirable  results. 

There  is,  in  fact,  no  such  principle,  and 
there  is  no  such  process.  Expressions  of 
this  kind  are  deceptive  and  illusory.  They 
originate  from  purely  abstract  reasoning, 
and  have  no  validity.  On  the  contrary,  if 
we  regard  the  facts  of  history  inductively, 
and  above  all  genetically,  we  are  forced  to 
the  conclusion  that  there  is  no  "inherent 
law"  of  political  progress.  If  we  extend 
our  range  of  observation  sufficiently,  we 
shall  see  that  advance  is  often  followed  by 
recession,  not  only  in  one  country  but  in 
the  whole  world.  There  is  no  such  phe- 
nomenon as  a  regular,  unbroken,  linear 
advance  toward  any  political  ideals  what- 
ever. Reasoning  based  upon  such  an  as- 
sumption is  misleading;  and,  in  view  of 

56 


THE    STATE    AS    A    HUMAN    IDEAL 

its  possible  consequences,  even  dangerous. 
Without  the  continued  vigorous  assertion  of 
the  resolution  by  which  it  has  been  acquired, 
liberty  has  no  security.  Every  type  of 
government,  if  left  to  itself,  tends  to  degen- 
erate into  some  form  of  tyranny. 

Not  only  this,  but  it  is  necessary  to  take 
into  account  the  fact  that  the  failure  to 
realize  political  ideals  for  which  a  struggle 
has  once  been  undertaken  is  often  followed 
by  a  period  not  merely  of  reaction,  but  of 
dejection  and  hopelessness.  No  pessimist 
is  so  bitter  as  a  disappointed  optimist.  The 
lesson  of  history  is,  that  it  is  only  by  per- 
sistent and  unrelaxing  effort  that  political 
progress  can  be  maintained.  As  in  the  hu- 
man body,  so  in  the  body  politic,  a  daily 
renewal  of  energy  is  essential  to  counter- 
balance the  forces  of  disintegration  which 
incessantly  tear  down  that  which  is  not  un- 
ceasingly rebuilt. 

That  this  is  true  in  principle  as  well  as 

57 


THE    PEOPLE'S    GOVERNMENT 

in  fact  is  evident  from  the  universal  result 
of  the  uncontrolled  play  of  natural  forces. 
The  processes  of  nature  uniformly  move  in 
the  form  of  cycles.  These  may  be  of  greater 
or  less  extent  and  duration,  but  they  consist 
without  exception  of  a  period  of  integration 
followed  by  a  period  of  disintegration.  They 
tear  down  with  the  same  facility  with  which 
they  build  up.  Every  natural  structure 
tends  to  degenerate.  It  may  be  renewed, 
it  may  be  surpassed  by  others ;  but,  as  a  con- 
crete thing,  it  tends  to  return  to  its  con- 
stituent elements. 


THE    SUBSTITUTION    OF    THOUGHT   FOR   FORCE 

There  is,  then,  in  the  course  of  political 
development,  no  natural  or  unconscious 
process  upon  which  it  is  possible  to  depend 
to  assure  either  its  progress  or  its  perma- 
nence in  any  ideal  sense.  Material  condi- 
tions there  are,  but  these  are  not  causes; 

58 


they  merely  furnish  occasions  for  the  opera- 
tion of  a  constructive  power  above  and  out- 
side of  them.  That  power  is  the  human 
mind. 

Left  to  itself,  let  us  repeat,  every  type 
of  government  tends  to  degenerate  into 
some  form  of  tyranny.  Just  in  proportion 
as  the  mental  determinations  which  have  en- 
tered into  the  development  of  the  State  are 
withdrawn  from  action,  in  that  degree  the 
purely  natural,  or  mechanical,  forces  regain 
the  ascendancy.  In  the  end,  therefore,  if  the 
determination  on  the  part  of  the  community 
to  maintain  the  rights  and  liberties  already 
acquired  were  to  cease,  society  would  soon 
return  to  the  condition  of  social  unconscious- 
ness in  which  the  autocratic  State  was  spon- 
taneously formed  by  the  interplay  of  purely 
natural  forces.  The  physically  stronger 
would  dominate  over  the  weaker ;  the  antith- 
esis of  "ruler"  and  "ruled"  would  be  re- 
stored; and  government  would  return  en- 

59 


THE    PEOPLE'S    GOVERNMENT 

tirely  to  the  category  of  might,  from  which, 
under  the  impulsion  of  the  idea  of  right,  it 
has  slowly  and  painfully  emerged. 

Never,  however,  since  men  began  to  think, 
has  mere  force,  unaided,  been  sufficient  to 
inspire  with  sincere  respect  the  minds  of 
men.  Always,  in  addition,  there  has  been 
needed  some  alliance  of  the  po^er  to  enforce 
obedience  with  the  right  to  command  it; 
and  thought  has,  therefore,  played  a  large 
role  in  the  development  of  the  modern 
State. 

Historically,  as  well  as  theoretically,  it  is 
through  their  own  thoughts,  as  well  as  by 
brute  force,  that  men  have  been  governed. 
Behind  the  reasoning  there  has  always 
gleamed  the  glaive,  but  even  the  naked 
sword  has  made  its  appeal  to  reason.  In 
truth,  the  history  of  the  State,  and  of  the 
theories  of  the  State,  reveals  a  progressive 
substitution  of  thought  for  force. 


60 


THE    STATE    AS    A    HUMAN    IDEAL 

THE    SEAT    OF    PUBLIC    AUTHORITY 

It  would  carry  us  far  beyond  the  limits 
of  time  to  which  this  discussion  must  of 
necessity  be  confined,  to  notice,  even  in  a 
summary  manner,  all  the  stages  of  thought 
through  which  the  conception  of  the  State 
has  passed.  First  of  all,  would  be  the  glori- 
fication of  the  hero,  the  reverence  for  the 
person  of  the  one  who,  by  courage  and 
achievement,  seemed  to  share  in  the  powers 
of  divinity,  and  through  his  godlike  supe- 
riority appeared  to  deserve  the  right  to  com- 
mand obedience.  Thus,  in  the  very  begin- 
ning of  conscious  reflection  upon  the  nature 
of  authority,  the  ruler  was  invested  with 
qualities  of  a  moral  nature  and  became  in 
the  minds  of  the  people  an  incarnation  of 
virtue,  the  personal  embodiment  of  the  ideals 
of  his  time. 

From  this  stage  of  hero  worship  to  the 
conception  of  the  ruler  as  the  delegate  and 

61 


THE    PEOPLE'S    GOVERNMENT 

representative  of  divine  power  and  author- 
ity the  transition  was  not  difficult.  Even 
upon  a  high  plane  of  culture  and  mental 
development,  this  tendency  to  see  in  rulers 
the  bearers  of  a  divine  commission  is  not 
only  possible  but  almost  universal.  The 
craving  of  the  mind  for  the  embodiment  of 
ideals  is  irresistible.  The  abstract  virtues 
and  the  social  needs — such  as  public  order, 
personal  security,  and  established  justice- 
seem  barren  and  incomplete  until  they  are 
personified.  When  it  is  considered  how 
many  artificial  ways  there  are  in  which  to 
crown  a  man  in  power  with  a  halo  of  right- 
eousness, and  how  strong  the  temptation  is 
to  employ  such  means,  it  is  not  wonderful 
that,  even  in  an  age  of  enlightenment,  public 
authority  is  readily  attributed  to  those  who 
profess,  in  the  name  of  their  superior  per- 
sonal excellence,  to  prescribe  the  conduct  of 
all  others. 

It  cannot  be  doubted  that  minds  wholly 


THE    STATE    AS    A    HUMAN    IDEAL 

incapable  of  conceiving,  in  a  scientific  sense, 
of  an  institution  so  complex  as  the  State, 
or  of  forming  any  consistent  theory  of  the 
source  of  its  authority,  have  nevertheless 
contributed  greatly  to  the  process  of  polit- 
ical development  by  sustaining  the  personal 
ideals  of  great  leaders  whom  they  have  con- 
sidered as  intrinsically  worthy  to  command 
their  support. 

The  transition  of  confidence  from  a  per- 
son to  a  dynasty,  and  from  a  dynasty  to 
monarchy  as  an  institution,  was  a  process 
of  extreme  simplicity,  finally  ending  in  the 
dogma,  "The  king  can  do  no  wrong."  Thus, 
mere  power  has  often  come  to  be  identified 
with  rightful  authority,  which  has  been  felt 
to  be  a  social  necessity,  not  because  it  has 
been  proved  to  exist,  but  because  it  was  evi- 
dently needed. 

In  fact,  the  claim  to  authority  is  older1 
than  any  theory  of  its  origin.    The  theories 
have  been  invented  to  justify  the  claim;  but 

63 


THE    PEOPLE'S    GOVERNMENT 

the  claim  is,  none  the  less,  in  part  a  result 
of  purely  mental  action.  Although  the  au- 
thority of  the  State  existed  before  a  theory 
of  its  nature  was  attempted,  it  was  never- 
theless assumed,  conceded,  and  exercised. 
It  is  only  when  it  is  challenged  that  its 
nature  and  validity  become  a  question. 
Neither  the  fact  that  it  is  exercised,  or  as- 
sumed, or  conceded,  can,  however,  be  offered 
as  a  sufficient  justification  for  its  existence. 
Until  authority  can  be  placed  upon  a  logical 
foundation,  the  human  mind,  which  has 
aided  in  establishing  it,  cannot  be  quite  sat- 
isfied with  its  own  achievements.  Heroes 
have  been  applauded,  they  have  been  in- 
vested with  superhuman  powers,  they  have 
been  glorified  as  the  personification  of  vir- 
tue, they  have  been  conceded  to  possess 
moral  as  well  as  physical  supremacy,  they 
have  been  esteemed  as  the  source  of  law, 
placed  above  the  law,  and  regarded  as  abso- 
lute; but  the  question  long  remained  unan- 

64 


THE    STATE    AS    A    HUMAN    IDEAL 

swered,  by  what  right  they  were  entitled  to 
command  and  to  compel  obedience.  This 
question  gave  birth  to  theories  regarding  the 
true  nature  of  public  authority  and  of  the 
State. 

THE    THEORY   OF    DIVINE    RIGHT 

There  is  something  at  first  thought  ex- 
tremely plausible  in  the  assertion  that 
princes  rule  by  divine  right.  Assuming  the 
existence  of  a  Divine  Being  as  the  Creator 
of  the  world,  omnipotent,  omniscient,  and 
benevolent,  it  would  seem  unreasonable  to 
doubt  that,  somewhere  in  the  scheme  of  crea- 
tion, provision  would  be  made  for  the  right- 
ful governance  of  mankind.  What,  then, 
more  simple  than  to  suppose  that  the  actual 
rulers  of  the  world  possess  a  commission  of 
divine  authority?  Having  admitted  its  ex- 
istence, the  State  would  at  once  be  clothed 
with  all  the  claims  to  respect,  fidelity,  and 
self-sacrificing  devotion  that  could  be  con- 
6  65 


THE    PEOPLE'S    GOVERNMENT 

ferred  by  the  most  sacred  religious  obliga- 
tion. Were  it  not  for  the  moral  contradic- 
tions revealed  by  a  comparison  of  these  lofty 
claims  with  the  actual  practices  of  sovereign 
rulers,  this  theory  could  hardly  fail  to  secure 
the  assent  of  all  religious  minds.  It  was 
not  until  these  contradictions  had  become  so 
numerous,  so  palpable,  and  so  shocking  as  to 
discredit  this  theory  in  the  minds  of  all 
thinking  men,  that  another  foundation  for 
the  State  seemed  to  be  required. 

This  dogma  had,  indeed,  an  ancient  rival. 
Long  before  Jean  Jacques  Rousseau  chal- 
lenged the  theory  of  divine  right  with  the 
declaration  that  the  People  are  the  rightful 
sovereign,  John  Locke  had  announced  and 
defended  that  doctrine.  Even  long  before 
Locke,  Jean  Jandun,  at  the  University  of 
Paris,  in  the  first  quarter  of  the  fourteenth 
century,  had  taught  that  sovereignty  is  in- 
herent in  the  people,  who  merely  confer  it 
upon  their  ruler.  But  even  Jandun's  doc- 

66 


THE    STATE    AS    A    HUMAN    IDEAL 

trine  was  only  a  revival  of  what  from  the 
second  to  the  sixth  century  of  our  era  had 
been  the  interpretation  of  the  "Lex  Regia" 
by  the  Roman  jurisconsults. 

It  is  curious  how  a  great  and  fertile  idea 
could,  after  having  once  been  so  clearly  ex- 
pressed, so  long  lie  dormant.  "Quidquid 
principi  placuit  legis  habet  vigorem"  was, 
indeed,  a  maxim  of  the  Roman  jurispru- 
dence as  transmitted  to  us  by  Justinian; 
but,  in  stating  that  the  will  of  the  prince  is 
law,  he  had  not  forgotten  the  true  source  of 
imperial  authority.  Quite  as  distinctly,  it 
was  stated,  "Populus  el  et  in  eum  suum  im- 
perium  et  potestatem  conferat"  It  was  only 
by  long  abuse  that  in  the  Roman  Empire 
the  power  of  the  State  had  been  violently 
acquired,  and  had  ceased  to  be  conferred  by 
the  free  act  of  the  people,  in  whom  it  was 
still  believed  legally  to  reside. 

It  was  a  German  emperor,  Frederick  II, 
who,  in  his  contest  with  the  Italian  munici- 

67 


THE    PEOPLE'S    GOVERNMENT 

palities,  in  the  twelfth  century,  first  openly 
and  boldly  challenged  this  ancient  restraint 
upon  imperial  absolutism,  and  extorted 
from  his  jurisconsults  the  formal  decision 
that  the  emperor  is  "lex  animata  in  terris," 
— the  living  law  for  the  whole  earth,  re- 
sponsible to  no  one  but  God,  in  whose  name 
he  proclaimed  his  legislation ;  but  even  some 
of  these  obsequious  flatterers  could  not 
accept  the  unlimited  authority  of  their  am- 
bitious lord.  Walking,  one  day,  with  Bul- 
garus  and  Martinus,  Barbarossa  is  said  to 
have  asked  if  they  did  not  think  he  was 
rightfully  master  of  the  world.  "Yes,"  re- 
plied Martinus.  "No,"  answered  Bulgarus, 
"not  as  to  property."  Having  proved  the 
better  courtier,  Martinus,  it  is  said,  was  re- 
warded with  the  present  of  a  horse.  Bul- 
garus, whose  conscience  was  more  tender, 
was  obliged  to  console  himself  by  making  a 
Latin  pun.  "Amissi  equum,"  he  wrote, 
"quia  dixi  aequum!" 

68 


THE    STATE    AS    A    HUMAN    IDEAL 


SOVEREIGNTY    CONCEIVED    AS    INHERENT    IN 
THE    BODY    POLITIC 

It  is  chiefly  in  periods  of  material  change 
that  thought  obtains  its  opportunity  of  free 
expression.  Potent  as  it  may  be  in  arriv- 
ing at  rationally  defensible  theories,  it  is 
only  when  exempt  from  forcible  suppression 
that  the  human  mind  may  freely  apply  itself 
to  the  unfettered  discussion  of  the  true  na- 
ture of  the  State.  It  is  such  periods,  there- 
fore, that  form  the  milestones  in  the  progress 
of  political  development. 

It  was  in  such  a  period,  for  example,  when 
the  United  Netherlands  in  the  sixteenth 
century  had  thrown  off  the  yoke  of  Spain, 
and  were  making  an  experiment  in  self- 
government,  that  Johannes  Althusius,  a 
German  jurist  resident  in  Holland,  made  a 
new  attempt  to  discover  the  true  foundation 
of  the  State. 

Like  Jean  Bodin,  Althusius  (1567-1638) 

69 


THE    PEOPLE'S    GOVERNMENT 

regarded  sovereignty  as  "indivisible,  incom- 
municable, and  imprescriptible";  but,  seek- 
ing for  its  substance,  not  in  "supreme  pow- 
er," but  in  some  form  of  moral  obligation, 
he  defined  it  as,  "a  right  inherent  in  the  entire 
body  politic  to  unite  by  free  association  for 
its  own  protection  and  government." 

Thus  conceived,  sovereignty  is  not  de- 
rived from  force,  but  from  the  right  to 
employ  force  for  the  protection  of  society. 
Even  more  skillfully  than  Rousseau,  who 
wrote  long  after  him,  Althusius  derives  it, 
not  vaguely  from  the  "people,"  but  from 
the  "body  politic"  as  a  moral  organism.  It 
is  not,  as  he  conceives  it,  an  attribute  of  in- 
dividuals, considered  singly  or  as  a  mass; 
but  of  a  community  of  free  men  united  to 
secure  and  preserve  their  inherent  rights  to 
life,  to  property,  and  to  liberty.  As  an  ex- 
pression of  a  moral  necessity,  he  contends, 
the  substance  of  the  State  is  not  "supreme 
power,"  or  power  of  any  kind.  The  State 

70 


THE    STATE    AS    A    HUMAN    IDEAL 

has  authority  because  it  is  a  moral  organism, 
founded  on  moral  principle,  and  represent- 
ing a  totality  of  human  rights.  Thus  it 
belongs  primarily  and  exclusively  to  the 
category  of  right,  rather  than  to  the  cate- 
gory of  might. 

The  State,  thus  defined,  at  once  takes  its 
place  in  the  realm  of  jurisprudence.  It  ex- 
ists de  jure,  but  also  sub  jure.  In  this  it 
differs  from  the  State  conceived  as  absolute, 
and  by  the  diameter  of  the  universe  from 
the  State  conceived  as  "supreme  power."  It 
may  have  but  little  power,  but  its  right  is 
indefeasible.  A  greater  force  may  over- 
whelm it,  take  possession  of  its  territory, 
enslave  its  population,  and  obliterate  its 
name;  but,  in  writing  its  epitaph,  we  may 
place  over  its  grave  the  legend:  "Here  lies 
the  victim  of  a  crime!" 

De  jure,  a  State  thus  destroyed  still  con- 
tinues to  exist,  and  may  at  any  time  reassert 
its  existence.  But,  even  at  the  maximum  of 

71 


THE    PEOPLE'S    GOVERNMENT 

its  powers,  it  exists  sub  jure  also.  Belong- 
ing by  definition  to  the  order  of  jurispru- 
dence, a  State,  however  powerful,  is  essen- 
tially under  law.  As  a  member  of  the 
society  of  States,  every  State  is  responsible 
for  its  acts,  and  possesses  outwardly  as  well 
as  inwardly  its  rights  and  duties.  The  laws 
that  govern  its  conduct  may  be%  enforceable 
or  not,  its  obligations  remain  the  same.  As 
a  moral  organism  endowed  with  conscious- 
ness of  its  rights  and  duties,  it  may  be  re- 
garded as  a  moral  person.  Justly  consid- 
ered, it  sustains  to  other  like  communities 
of  men  all  the  relations  of  a  person.  It  may 
properly  sue  and  be  sued  in  a  legal  process 
before  a  court  of  its  own  election.  It  is,  in 
brief,  a  responsible  being,  and  the  human 
mind  cannot,  without  a  defect  in  its  logical 
procedure  or  the  sacrifice  of  a  fundamental 
principle  essential  to  the  very  conception  of 
a  State,  plead  its  irresponsibility. 


THE    STATE    AS    A    HUMAN    IDEAL 
THE   STATE   AS   A   RESPONSIBLE   ENTITY 

All  this  cannot,  of  course,  be  said  of  the 
State  regarded  merely  as  "supreme  power." 
With  such  a  State  goes  the  crude  concep- 
tion embodied  in  the  old  absolutist  maxim, 
"Princeps  le gibus  solutus  est";  a  maxim 
which,  unfortunately,  has  outlived  the  sys- 
tem of  which  it  formed  a  part.  If,  in  fact, 
the  prince  is  exempt  from  obedience  to  the 
laws,  then  the  State  has  no  place  in  the 
sphere  of  jurisprudence;  it  is  merely  a  force 
among  other  forces  of  a  like  kind.  If  it  is 
the  stronger,  it  may  overwhelm  and  destroy 
without  scruple  everything  that  opposes  it. 
If  it  is  the  weaker,  it  must  submit  to  the  iron 
law  of  conquest,  and  surrender  to  its  phys- 
ical superior. 

Unhappily,  this  relic  of  the  age  of  abso- 
lutism still  survives,  and  even  enjoys  a  place 
of  honor  in  the  thoughts  of  statesmen  and 
even  of  jurists.  Sovereignty,  whether  of  a 

73 


THE    PEOPLE'S    GOVERNMENT 

monarch  or  of  a  republic,  is  still  identified 
with  ''supreme  power";  and  the  power  of 
the  State  is  still  regarded  as  exempt  from 
obedience  to  law.  The  alleged  "right  of 
conquest"  still  permits  the  stronger  to  im- 
pose an  arbitrary  and  irresponsible  will 
upon  the  conquered.  The  mere  fact  of  war, 
which  any  sovereign  State  may  at  any  time 
begin,  is  considered  to  signify  the  termina- 
tion of  all  treaties.  Of  a  modern  State,  of 
a  constitutional  State,  even  of  a  State 
founded  upon  the  "sovereignty  of  the  peo- 
ple," equally  with  the  absolutist  State,  which 
no  civilized  people  would  longer  tolerate, 
it  may  still  be  said,  when  its  outward  rela- 
tions alone  are  considered,  "Legibus  solutus 
est!3' 

The  indictment  may  appear  severe,  but 
no  well-informed  person  will  dispute  it. 
Within  our  century,  within  the  present  dec- 
ade, within  the  year  not  yet  ended,  all  this 
has  been  illustrated  upon  a  scale  that  fills 

74 


THE    STATE    AS    A    HUMAN    IDEAL 

the  human  mind  with  a  sense  of  horror. 
And  there  is  no  modern  nation  that  can 
show  clean  hands;  for  there  is  none  that 
would  not  invoke,  as  an  excuse  for  not  ap- 
pearing before  a  tribunal  of  justice,  the 
sovereign  right  of  a  State  to  determine  its 
own  conduct  on  the  principle  of  legibus 
solutus.  For  the  State  there  is  no  binding 
and  authoritative  law  which,  upon  the  plea 
of  its  own  supremacy,  it  cannot  openly 
violate. 

What  renders  the  reality  most  deplorable 
is  that  it  is  within  the  range  of  human  deter- 
mination to  place  the  State  frankly  and  un- 
equivocally within  the  sphere  of  recognized 
juristic  principles,  binding  it  to  observe  the 
maxims  of  human  conduct  which  within  its 
own  limits  and  upon  its  own  members  it  re- 
gards itself  as  authorized  to  enforce;  yet 
there  is  no  direct,  persistent,  and  general 
movement  in  this  direction. 


75 


THE    PEOPLE'S    GOVERNMENT 

THE  TRUE  NATURE  OF  AUTHORITY 

What,  then,  is  the  foundation  of  this  au- 
thority which  the  State,  as  sovereign,  as- 
sumes to  exercise?  Does  it  really  extend  to 
the  unqualified  claim  of  unlimited  privilege 
implied  in  the  idea  of  absolute  supremacy? 
In  brief,  is  absolute  supremacy  a  right,  or 
is  it  a  mere  assumption? 

We  shall  struggle  in  vain  to  derive  right- 
ful supremacy  from  the  idea  of  "supreme 
power,"  in  which  sovereignty  is  ordinarily 
assumed  to  consist,  whether  this  be  possessed 
by  a  monarch  or  by  a  people.  The  concep- 
tion gains  no  moral  increment  from  its 
source  so  long  as  it  remains  mere  "power." 
The  "people"  can  confer  upon  the  State  no 
right  that  is  absolutely  without  limits,  for 
the  reason  that  they  themselves  possess  no 
unlimited  rights.  So  long  as  the  discussion 
is  kept  within  the  bounds  of  jurisprudence, 
all  rights  are  definite  and  limited.  This  re- 

76 


THE    STATE    AS    A    HUMAN    IDEAL 

suits  from  their  very  nature.  A  right  that 
cannot  be  defined  is  no  right  at  all. 

What  is  it,  we  may  ask,  in  the  nature  of 
the  "people,"  that  gives  them  unlimited  au- 
thority? The  fact,  it  may  be  answered,  that 
there  is  no  authority  superior  to  themselves. 
But  is  it  true  that  there  is  no  authority  su- 
perior to  themselves? 

The  problem  presses  itself  upon  us :  What 
is  the  source  of  the  alleged  authority  of  the 
people?  In  what  does  it  consist?  Is  it  their 
unqualified  will,  their  mere  power,  or  their 
determination  to  do  a  certain  thing,  or  to 
pursue  a  certain  course?  If  the  source  of 
authority  is  mere  power,  or  determination, 
or  volition,  then,  certainly,  authority  is  a 
measurable  magnitude,  a  quantity  that  can 
be  calculated,  weighed,  and  placed  in  com- 
parison with  another  quantity.  It  partakes 
then  of  the  nature  of  force,  and  is,  in  fact, 
only  another  name  for  force.  It  becomes  a 
mere  problem  in  arithmetic. 

77 


THE    PEOPLE'S    GOVERNMENT 

But,  in  truth,  authority,  in  any  sense 
which  a  jurist  can  recognize,  is  not  a  quan- 
tity, it  is  a  quality.  It  proceeds  from  a  dis- 
crimination between  what  is  right  and  what 
is  wrong.  That  distinction  cannot  be  cre- 
ated, and  it  cannot  be  destroyed,  by  mere 
volition.  It  cannot  be  reduced  to  terms  of 
force.  It  cannot  be  expressed^  in  terms  of 
arithmetic.  It  is  apprehended  through  none 
of  the  external  senses;  it  is  an  affair  of  the 
human  mind. 

Are  we  dealing  now  with  mere  verbal  re- 
finements and  metaphysical  conceptions? 
On  the  contrary,  we  are  dealing  with  one 
of  the  most  immediate,  universal,  and  indis- 
putable of  human  intuitions — the  distinction 
between  right  and  wrong. 

What  is  the  validity  of  this  intuition?  It 
is  the  same  as  that  of  any  axiom  whatever, 
namely,  that  thought  is  impossible  without 
it.  Define  them,  classify  them,  or  dispute 
about  them  as  we  may,  it  is  impossible  tg 

78 


THE    STATE    AS    A    HUMAN    IDEAL 

regard  human  relations  without  making  a 
distinction  between  right  and  wrong ;  as  im- 
possible, in  fact,  as  to  fix  the  attention  upon 
objects  in  space  without  being  aware  that 
the  shortest  distance  between  any  two  points 
is  a  straight  line. 

Authority,  therefore,  has  its  true  source 
in  the  nature  of  intelligence,  which  discrim- 
inates between  that  which  "ought"  and  that 
which  "ought  not"  to  be  done.  It  proceeds 
from  an  apprehension  of  a  mandatory  rule 
of  action;  rationally  mandatory,  but  not 
physically  compulsory,  for  obedience  and 
disobedience  are  matters  of  choice  and  voli- 
tion. Corresponding  to  them,  in  the  sphere 
of  feeling,  are  the  sense  of  innocence  and 
the  sense  of  guilt.  Thus  the  whole  nature 
of  man  responds  to  the  voice  of  an  authority 
higher  than  that  of  the  human  will  as  pos- 
sessing a  rightful  claim  to  obedience. 


79 


THE    PEOPLE'S    GOVERNMENT 

THE    IMPERSONALITY    OF   AUTHORITY 

Thus  conceived,  authority  does  not  pri- 
marily pertain  in  any  sense  to  persons.  It 
is  no  more  an  attribute  of  the  people  than 
it  is  of  the  prince.  The  doctrine  of  popular 
sovereignty  teaches  otherwise,  hut  its  foun- 
dation is  as  faulty  and  its  logic  is  as  de- 
fective as  that  involved  in  the  theory  of 
divine  right. 

It  is  of  the  highest  importance  that  this 
should  be  understood ;  at  least,  that  it  should 
not  be  misunderstood,  of  which  there  is  grave 
danger. 

We  are  accustomed  to  think  of  the  "will 
of  the  people"  as  the  source  of  that  form  of 
authority  which  is  expressed  in  the  State, 
but  this  is  inexact.  The  error  owes  its  origin 
to  the  bodily  transfer  of  a  vague  conception 
from  monarchy  to  democracy,  without  even 
an  attempt  at  analysis.  If  we  are  right  in 
denying  that  the  mere  will  of  the  prince  is 

80 


THE    STATE    AS    A    HUMAN    IDEAL 

the  source  of  law,  upon  what  principle  can 
we  claim  that  the  mere  will  of  the  people  is 
the  source  of  law?  The  truth  is  that  law, 
in  any  defensible  sense,  is  not  to  be  derived 
from  will,  but  from  reason;  but  reason  is 
not  a  private  and  purely  personal  possession, 
it  is  a  common  and  universal  standard  of 
judgment,  a  tribunal  to  which  all  men  may 
appeal,  because  it  is  the  final  source  of  au- 
thority by  which  rational  intelligence  must 
be  guided. 

While  we  properly  employ  the  word  "rea- 
son" to  designate  a  faculty  of  the  mind,  we 
do  not  mean  that  it  is  in  any  sense  an 
arbitrary  faculty,  capable  of  making  its  own 
independent  determinations,  or  in  any  re- 
spect similar  to  the  faculty  of  choice.  We 
cannot  by  mere  thinking  make  black  white, 
or  a  whole  greater  or  less  than  the  sum  of 
its  parts.  Subjectively,  reason  is  a  personal 
capacity  for  apprehending  principles;  but 
objectively,  it  is  entirely  impersonal,  consti- 
7  81 


THE    PEOPLE'S    GOVERNMENT 

tuting  the  very  framework  of  the  universe. 
When  men  "reason"  together  they  try  to 
meet  on  this  common,  objective  ground. 
They  appeal  from  that  which  is  individual 
to  that  which  is  common  to  them  all;  but 
which  is,  at  the  same  time,  above  and  beyond 
their  individuality,  or  personal  power  of  de- 
termination. It  is  before  this*  superior  tri- 
bunal that  the  human  mind  appears  when 
it  tries  its  cases  in  the  highest  court  of 
appeal. 

It  is  not,  therefore,  from  volition,  and  it 
is  not  even  from  subjective  reason,  that  au- 
thority is  derived.  It  is,  on  the  contrary,  in 
reason  as  objective  and  impersonal — the 
common  bond  of  all  intelligence — that  au- 
thority resides. 

Can  it  be  for  a  moment  contended  that 
this  impersonal  reason  does  not  exist,  or  that 
it  does  not  possess  authority?  What  is  it, 
then,  that  controls  the  operation  of  the  hu- 
man understanding,  and  decides  between  the 

82 


THE    STATE    AS    A    HUMAN    IDEAL 

validity  or  invalidity  of  its  processes  of  re- 
flection? No  man  really  doubts  the  imma- 
nence within  himself  of  that  which  is  not 
himself,  but  to  which  he  constantly  makes 
appeal  to  justify  his  judgments  and  opin- 
ions. He  knows  perfectly  that  his  own  in- 
terests, his  appetites,  his  desires,  and  his 
sentiments — the  phases  of  his  consciousness 
which  are  strictly  personal  to  himself — pos- 
sess no  inherent  authority,  and  that  no  soph- 
istry can  make  them  authoritative.  His 
will,  in  so  far  as  it  is  made  up  of  these 
purely  subjective  elements,  possesses  no 
claim  above  that  of  any  other  will ;  and  there 
is  nothing  in  its  nature  as  mere  volition  that 
can  be  considered  final  and  rightfully  com- 
manding. It  is  only  when  it  is  fortified  by 
an  appeal  to  principles  which  are  not  per- 
sonal, and  which  have  the  quality  of  regu- 
lative standards  or  norms  of  judgment, 
that  any  man's  will  can  possess  authority. 
Whatever  authority  it  ever  does  possess  is 

83 


THE    PEOPLE'S    GOVERNMENT 

derived  from  its  conformity  to  this  imper- 
sonal source. 

Such  a  doctrine,  it  may  be  said,  will  do 
very  well  for  philosophers,  but  what  does 
the  common  man  know  of  these  things? 

It  is  precisely  the  common  man  whose 
mind  is  clearest  on  this  subject.  It  is  the 
sophisticated  only  who  have  .iheir  doubts. 
The  authority  of  reason  is  not  subject  to 
any  man's  monopoly.  It  dwells  in  the  cot- 
tage as  well  as  in  the  palace.  It  needs  no 
earthly  throne  to  give  it  supremacy,  for  it 
is  enthroned  in  every  man's  intelligence  and 
speaks  in  every  man's  sense  of  obligation. 
Its  language  all  may  understand.  When 
questions  are  asked,  it  replies  imperatively: 
"You  ought"  or  "You  ought  not"  Doubt 
begins  only  when  self-interest,  in  some  form, 
refuses  to  accept  the  answer  and  hedges  it- 
self about  with  arguments. 


84 


THE    STATE    AS    A    HUMAN    IDEAL 
THE    FOUNDATION   OF   THE    STATE 

Whence,  then,  does  the  State  derive  its 
authority?  Certainly  not  from  the  "will  of 
the  prince,"  and  with  equal  certainty  not 
from  the  "will  of  the  people."  It  does  not 
proceed  from  any  mere  will  whatever. 

If  behind  the  mere  phenomena  of  exist- 
ence we  place  in  our  thought  a  supreme  cre- 
ative power  whence  all  things  proceed,  and 
name  it  the  Divine  Will,  that  is  a  philosoph- 
ical conception  which  we  are  not  called  upon 
here  to  discuss,  much  less  to  dispute;  but, 
by  the  very  terms  of  the  conception,  this 
fons  et  origo  of  power  and  authority  is  above 
and  beyond  mere  human  personality.  It  is 
objective  and  impersonal,  in  the  sense  here 
intended;  that  is,  it  is  no  quality  of  the  hu- 
man individual.  The  human  individual  has 
no  attribute  that  he  can  transfer  to  the  State 
which  can  give  it  rightful  authority  to  com- 
mand and  enforce  obedience. 

85 


THE    PEOPLE'S    GOVERNMENT 

The  State,  therefore,  must  base  its  au- 
thority upon  some  other  foundation  than 
the  "will  of  the  prince"  or  the  "will  of  the 
people." 

At  first  thought,  there  is  a  great  differ- 
ence between  the  "will  of  the  prince"  and 
the  "will  of  the  people."  The  former,  it 
may  be  said,  may  be  partial,  arbitrary,  and 
unjust;  in  any  case  it  is  purely  individual. 
But  may  not  the  "will  of  the  people"  also, 
if  it  is  based  on  interests,  appetites,  desires, 
and  sentiments — and  let  us  add  class  or  sec- 
tional enmities — be  equally  partial,  arbi- 
trary and  unjust?  Not  only  so,  but  it  also, 
in  the  last  analysis,  in  addition  to  being  even 
more  effectual,  is  equally  individual.  How 
is  it  possible  to  derive  from  a  mere  numerical 
collection  of  private  wills  an  authority  that 
does  not  inhere  in  any  one  of  them?  What 
right  is  possessed  by  ten  men  that  justifies 
them  in  imposing  their  private  wills  in  any 
arbitrary  sense  on  an  eleventh  man  who  does 

86 


THE    STATE    AS    A    HUMAN    IDEAL 

not  consent  to  obey  them,  and  wishes  to 
prove  that  their  requirements  are  unjust? 

It  is  evident,  therefore,  that  the  State, 
equally  with  the  individual,  must  derive  its 
authority  from  principles  which  can  justify 
their  existence  before  the  bar  of  reason. 
The  real  problem  is:  Are  there  any  prin- 
ciples so  clear,  so  self-evident,  and  so  im- 
perative in  their  nature  that  men  may  justly 
be  compelled  to  obey  them,  whether  as  indi- 
viduals they  consent  to  do  so  or  not? 

Can  men  agree  upon  any  such  principles  ? 
Is  it  possible  to  form  any  such  conception  of 
law  as  to  give  it,  in  all  its  applications,  the 
quality  of  inherent  authority?  That  is  the 
fundamental  question  that  underlies  all  leg- 
islation, and  that  must  in  the  end  determine 
the  relation  of  the  citizen  to  the  State. 


Ill 

LAW   AS   A    SOVEREIGN 
DECREE 


Ill 

LAW   AS   A   SOVEREIGN    DECREE 

The  State,  as  it  exists,  is  neither  ex- 
clusively the  embodiment  of  force  nor  the 
perfect  realization  of  a  human  ideal.  It  is, 
on  the  contrary,  a  compromise  between  in- 
herited conditions  on  the  one  hand  and  suc- 
cessive social  reforms  on  the  other.  It  is, 
in  part,  the  work  of  Nature,  which  has  im- 
posed upon  men  certain  necessities  from 
which,  even  by  their  united  efforts,  they 
cannot  entirely  free  themselves ;  and,  in  part, 
the  work  of  Reason,  which  has  striven,  with 
some  success,  to  surmount  the  obstacles 
arising  from  the  appetites,  the  enmities, 
and  the  ambitions  of  mankind. 

Food,  raiment,  shelter,  and  other  sub- 
sidiary commodities  are  essential  to  human 

91 


THE    PEOPLE'S    GOVERNMENT 

existence  and  well-being.  To  produce 
these,  human  activity  is  necessary;  and,  to 
divide  and  distribute  them  in  a  satisfactory 
manner,  so  that  each  may  possess  and  enjoy 
his  own  and  receive  the  just  fruits  of  his 
labor,  it  has  been  needful  to  devise  obliga- 
tory rules  of  action,  imposing  upon  each 
individual  in  the  community  certain  duties 
of  performance  and  certain  obligations  of 
restraint. 

To  define  and  enforce  these  rules  of 
action  is  the  recognized  function  of  the 
State.  In  the  most  primitive  and  rudimen- 
tary forms  of  society,  in  which  the  popula- 
tion was  nearly  homogeneous  and  the  tasks 
of  life  were  nearly  uniform,  the  inherited 
customs  of  the  community  furnished,  for  the 
most  part,  the  rules  of  conduct.  Whatever 
else  was  necessary  for  the  regulation  of  life 
was  determined  by  the  chief  person  or  per- 
sons in  the  community,  whose  decisions  had 
the  force  of  law.  With  the  growing  com- 

92 


LAW    AS    A    SOVEREIGN    DECREE 

plexity  of  social  relations,  new  rules  were 
constantly  required;  and,  in  time,  when  the 
necessary  level  of  culture  was  attained,  each 
community,  according  to  its  form  of  organi- 
zation, added  to  the  customary  usages  and 
traditional  precepts  more  definite  prescrip- 
tions of  conduct  in  the  shape  of  written 
regulations. 

Without  entering  upon  the  details  of 
legal  history,  it  is  sufficient  for  our  purpose 
to  call  attention  to  the  fact,  that,  with  the 
differentiation  of  the  community  into  a 
* 'governing"  and  a  "governed"  class,  the 
process  of  law-making  assumed  the  form 
of  legislation  by  decree.  Whatever  the 
specific  type  of  the  law-making  power, 
whether  that  of  popular  assemblies  or  of 
individual  autocrats,  the  power  that  made 
the  laws  gradually  came  to  be  regarded  as 
possessing  unlimited  authority  to  do  so.  In 
this  manner  grew  up  the  conception  of  an 
imperium,  a  majestas,  or  ''sovereignty," 


THE    PEOPLE'S    GOVERNMENT 

charged  with  the  function,  and  possessing 
the  exclusive  right,  of  determining  the  rules 
of  action  which  the  community  must  ob- 
serve. 

That  such  a  delegation  of  power  was 
necessary  as  well  as  convenient,  is  evident; 
for  legislation  en  masse  by  any  community 
of  men  in  a  complex  condition  of  society  is 
hardly  conceivable.  But  the  development, 
through  centuries  of  time,  of  the  idea  that 
there  exists  somewhere  an  exclusive  sover- 
eign power,  whose  sphere  is  undefined, 
whose  operation  is  incessant,  whose  decrees 
are  materially  irresistible,  and  whose  author- 
ity is,  therefore,  not  to  be  questioned,  has 
introduced  into  the  world  a  cause  of  dis- 
turbance which  has  profoundly  affected  not 
only  the  realm  of  thought  but  the  field  of 
action.  It  has  sown  the  seeds  of  inconse- 
quence in  the  theories  of  government,  and 
of  revolution  in  the  minds  of  overburdened 
populations. 

94 


LAW    AS    A    SOVEREIGN    DECREE 
LAW    CONCEIVED    AS    COMMANDMENT 

Rightly  understood  and  intelligently  con- 
sidered, law  should  evoke  not  only  universal 
respect,  but  even  the  sincere  reverence  of 
those  called  upon  to  yield  their  obedience; 
but,  in  many  instances,  it  is  regarded  as  a 
burdensome  restraint  upon  personal  liberty 
which,  whenever  possible,  it  is  permissible 
secretly  to  evade. 

The  reasons  for  this  attitude  of  mind  are 
manifold,  but  one  of  them  at  least  is  not 
without  justification;  for  laws  may  be  so 
arbitrary  and  so  evidently  unjust  as  to  do 
violence  to  both  reason  and  conscience.  It 
then  ceases  to  be  a  duty  to  obey  them.  It 
may  even  be  a  duty  to  resist  them. 

It  has  not  infrequently  happened  that  the 
requirements  of  the  law  and  the  dictates 
of  reason  and  conscience  have  been  in  such 
violent  opposition  that  those  in  power  have 
esteemed  it  desirable  to  silence  and  sup- 

95 


THE    PEOPLE'S    GOVERNMENT 

press  altogether  the  free  exercise  of  intelli- 
gence, and  to  demand  unhesitating  compli- 
ance with  the  mandates  issued  by  the  State. 
Force  has  then  taken  the  place  of  argument ; 
and  law  has,  therefore,  been  made  to  seem 
even  more  arbitrary,  unjust,  and  odious 
than  before. 

In  substituting  a  purely  factitious  form 
of  authority  for  that  which  might  be  accept- 
able to  human  intelligence,  the  State  has 
done  itself  incalculable  harm.  Not  the 
least  part  of  the  injury  inflicted  is  the  ap- 
parent justification  of  the  idea  that  the 
State  is  the  enemy,  rather  than  the  friend, 
of  the  common  man.  Thus  has  been  built 
up  along  with  the  artificial  distinction  be- 
tween "rulers"  and  "subjects"  a  certain 
antagonism  between  them;  the  former  pos- 
sessing the  unlimited  right  to  command,  and 
the  latter  being  bound,  against  their  will,  by 
the  necessity  of  unquestioning  obedience. 

So  completely  has  this  antithesis  become 

96 


LAW    AS    A    SOVEREIGN    DECREE 

ingrained  into  the  thoughts  of  men,  that 
even  great  and  independent  thinkers  have 
made  it  the  foundation  of  their  philosophy 
of  jurisprudence.  Thus,  for  example,  the 
celebrated  English  jurist,  John  Austin,  de- 
fines "law"  as  "the  commandments  imposed 
by  a  supreme  authority  upon  persons  wholly 
subordinate  to  it.31 

Whatever  does  not  fall  within  this  defini- 
tion, declares  the  learned  jurist,  is  not  law. 
As  a  consequence,  there  is  not,  and  cannot 
be,  such  a  thing  as  "law  international";  for, 
since  there  is  no  "supreme  authority  "capa- 
ble of  issuing  "commandments"  to  inde- 
pendent sovereign  nations,  there  is  not,  and 
there  cannot  be,  any  law  for  them.  Being 
sovereign,  they  are,  by  definition,  above  the 
law;  and,  therefore,  cannot  be  subject  to  it. 
Legibus  solutus  must,  of  necessity,  be  ap- 
plied to  every  sovereign  power  thus  con- 
ceived. 

To   the    student    of   comparative    juris- 

8  97 


THE    PEOPLE'S    GOVERNMENT 

prudence,  especially  when  regarded  from 
the  historical  point  of  view,  such  a  definition, 
entirely  apart  from  the  absurdity  of  its 
consequences,  is  evidently  insufficient;  and 
the  attempt  to  fit  customary  law  and  judi- 
cial decisions  to  this  procrustean  standard 
makes  it  still  clearer  how  inadequate  this 
conception  is.  To  give  it  the  appearance  of 
validity,  it  is  necessary  to  reason  in  a  circle, 
attempting  alternately  to  prove  the  exis- 
tence of  a  sovereign  from  the  existence  of 
law,  and  the  existence  of  law  from  the 
existence  of  a  sovereign. 

There  is,  in  truth,  no  proof  whatever  that 
law  is  essentially  and  exclusively  a  "com- 
mandment." It  may  be  merely  a  tradi- 
tional usage,  a  tacit  agreement,  or  a  public 
convention.  We  may,  indeed,  speak  of  the 
"commandments"  of  the  law;  but  the  idea 
that  the  law  emanates  from  a  power  having 
authority  to  impose  it  upon  persons  entirely 
subordinate  to  it  must  at  least  be  qualified 

98 


LAW    AS    A    SOVEREIGN    DECREE 

by  the  statement  that  the  subjects  of  law  and 
the  makers  of  law,  in  the  modern  State, 
may  be  identically  the  same. 

If  this  be  true,  Austin's  denial  of  the  pos- 
sibility of  international  law  is  purely  dog- 
matic, and  has  no  foundation  in  the  essen- 
tial nature  of  law.  Rules  of  action  laid 
down  by  the  voluntary  agreement  of  sover- 
eign states  possess  all  the  qualities  and  all 
the  authority  of  law,  even  though  they  are 
not  imposed  by  any  superior  power ;  for  law 
is  not  essentially  a  decree,  it  is  a  rule  which 
it  is  agreed  shall  be  accepted  and  obeyed. 

In  truth,  decrees  become  law  only  where 
there  exists  a  self-sufficient  and  unlimited 
form  of  authority  that  is  passively  accepted 
as  final  and  supreme.  In  the  modern  con- 
stitutional State  such  a  form  of  authority 
does  not  exist.  With  us  in  the  United 
States,  for  example,  we  choose  representa- 
tives to  formulate,  interpret,  and  execute 
certain  rules  of  action  which  we  believe  will 

99 


THE    PEOPLE'S    GOVERNMENT 

be  for  the  benefit  of  the  community.  Our 
statutes,  as  well  as  our  traditional  usages 
and  judicial  decisions,  which  have  the  force 
of  law,  are  not  "commandments"  so  much 
as  they  are  agreements.  Our  legislators 
agree  upon  what  shall  become  legislation, 
our  judges  declare  what  the  laws  thus  en- 
acted are,  and  our  executives  .see  that  the 
decisions  thus  reached  are  executed.  With 
us  the  antithesis  between  the  "ruler"  and  the 
"ruled"  has  disappeared,  and  with  it  the 
notion  of  law  as  mere  "commandment." 

Although  the  conception  of  law  has 
changed  with  the  process  of  law-making, 
the  idea  that  it  is  in  effect  a  command  issu- 
ing from  absolute  sovereignty  lingers  on  in 
our  legal  classics,  our  political  theories,  our 
forms  of  speech,  and  even  in  our  profes- 
sional arguments.  But,  considered  in  the 
light  of  actuality  in  the  United  States,  and 
many  other  countries,  John  Austin's  defini- 
tion of  law  would  never  be  suggested  to 

100 


8CRIPPS  fNSTlTUTKMI 

LAW    AS    A    SOVEREIGN    DECREED 

the  mind  as  an  induction  from  existing 
facts.  Based  on  a  particular  artificial  order 
of  things  that  has  almost  entirely  passed 
away,  it  is  at  present  an  anachronism  in 
juristic  science  which  may  very  well  be 
finally  dismissed. 


THE  MYTH  OF  ABSOLUTE  SOVEREIGNTY 

And  what  has  just  been  said  with  regard 
to  the  notion  of  law  as  a  decree  may  be  said 
with  equal  truth  of  the  idea  of  absolute 
sovereignty,  upon  which  it  is  founded.  The 
conception  is,  in  fact,  a  mere  generalization 
from  a  condition  created  by  a  passing  as- 
sumption of  authority  that  has  no  logical 
justification.  Along  \vith  the  supreme  and 
unlimited  authority  of  the  prince  goes  the 
whole  foundation  of  arbitrary  power.  And 
yet  there  lingers  in  many  minds  a  craving 
for  government  by  decree,  if  only  what  is 
commanded  is  in  accordance  with  precon- 

101 


THE    PEOPLE'S    GOVERNMENT 

ceived  ideas  of  what  the  law  should  be. 
Our  time  shows  a  marked  revival  of  this 
tendency.  Originally,  the  American  peo- 
ple, having  thrown  off  the  yoke  of  royal 
authority,  and  even  the  supremacy  of  a  for- 
eign parliament,  were  deeply  interested  in 
preserving  individual  liberty.  Today,  very 
largely  owing  to  the  influence  of  foreign 
example  and  theory,  introduced  into  our 
country  partly  through  the  addition  to  our 
population  of  elements  with  less  mature 
political  experience  and  partly  through  aca- 
demic ideas  borrowed  from  foreign  teachers, 
many  persons  are  ready  to  abolish  the  guar- 
antees of  personal  freedom,  if  thereby  they 
may  exercise  their  will  upon  their  fellow-citi- 
zens. 

Equality  before  the  law  does  not  seem  to 
them  quite  satisfactory.  They  would  not 
only  redistribute  the  wealth  of  the  nation; 
they  would  lay  down  sumptuary  laws  for 
the  regulation  of  the  whole  of  life.  They 

102 


LAW    AS    A    SOVEREIGN    DECREE 

do  not  like  our  system  of  legislation  by 
agreement  on  the  basis  of  accepted  principles 
of  justice.  Power,  they  contend,  is  thus  so 
divided  and  distributed  that  "commands" 
cannot  be  imposed  upon  those  whom  they 
would  render  "entirely  subordinate  to 
them."  All  this  ill  befits  a  people  that  has 
struggled  successfully  to  throw  off  the  yoke 
of  absolute  sovereignty.  It  is  the  old  story 
of  egoism  and  autocratic  ambition  in  a  new 
guise.  If  the  legislative  body  is  too  slow  to 
enact  the  particular  legislation  desired,  if 
the  judiciary  finds  it  when  thus  enacted  not 
in  harmony  with  the  guarantees  of  personal 
liberty  already  agreed  upon,  this  tendency 
to  rule  by  "commandments"  manifests  it- 
self in  urging  upon  the  executive  the  duty 
of  compelling  these  other  branches  of  gov- 
ernment to  obey  his  will. 

It  is  not  always  perceived,  that  this  is  a 
return  to  a  baseless  conception  of  the  true 
nature  of  law,  namely,  that  it  is  a  mere  de- 

103 


THE    PEOPLE'S    GOVERNMENT 

cree  of  sovereign  power.  Sovereign  power 
is,  indeed,  essential  to  the  very  existence  of 
the  State;  but  it  is  not  an  unlimited  sover- 
eignty, capable  of  issuing  purely  arbitrary 
commandments.  The  "citizen,"  equally  with 
the  "subject,"  must  obey  the  law,  when  it 
is  once  declared  to  be  law;  but  the  ques- 
tion before  us  now  is:  What  is  law,  in  ac- 
cordance with  the  conception  of  the  State 
as  a  moral  organism,  as  distinguished  from 
arbitrary  power? 

Technically,  no  doubt,  from  the  point  of 
view  of  the  practical  lawyer,  the  citizen  is 
bound  to  obey  any  law,  whatever  it  may  be, 
if  it  can  be  enforced  upon  him,  whether  it 
be  just  or  unjust;  but  we  are  regarding  the 
question  at  this  time  from  a  higher  point  of 
view.  There  are  commandments  which  can 
never  be  made  law  without  subverting  the 
true  conception  of  the  State,  which  is  not 
merely  an  embodiment  of  power  but  an 
organ  of  human  justice. 

104 


LAW   AS    A    SOVEREIGN    DECREE 

To  be  a  science,  jurisprudence  must  main- 
tain that  even  the  State  cannot  be  permitted 
to  be  unjust,  or  to  impose  unjust  command- 
ments. It  must  stand  for  that  which  is 
defensible  in  the  realm  of  thought,  and  must 
be  consistent  with  clear  principles  of  jus- 
tice. The  law,  in  this  sense,  cannot  issue 
from  mere  arbitrary  will,  no  matter  whose 
will  it  is.  If  it  is  to  be  considered  as  an 
expression  of  will  at  all,  it  must  be  a  de- 
termination of  will  emanating  from  reason; 
for  reason  is  to  will  what  the  united  evidence 
of  our  senses  is  to  our  personal  sensations 
and  emotions — the  objective  standard  by 
which  error  is  to  be  corrected  and  the  truth 
determined.  But  reason  does  not  deal  with 
the  unlimited  and  the  absolute,  which  are 
not  comprised  in  any  individual  experience. 
Its  province  is  to  define  limits,  to  set  bounds, 
and  to  establish  relations  which  are  just. 
Neither  in  the  nature  of  the  prince  nor  in 
the  nature  of  the  Deople  is  there  any  right 

105 


THE    PEOPLE'S    GOVERNMENT 

of  absolute  or  unlimited  command.  Abso- 
lutism is  essentially  unreasonable.  It  is  a 
usurpation  of  authority,  and  can  be  sus- 
tained only  by  force.  Absolute  sovereignty, 
no  matter  by  whom  it  is  claimed,  is  a  myth. 

THE    GENESIS    OF    POPULAR    SOVEREIGNTY 

». 

We  often  hear  it  dogmatically  stated  that 
the  "will  of  the  people"  is  the  ultimate 
source  of  public  authority,  the  true  fons  et 
origo  of  law. 

It  is  of  the  highest  importance  to  exam- 
ine this  assumption,  to  trace  its  develop- 
ment, and  to  ask  in  what  sense  it  is  true. 

It  is  sometimes  asserted  that  the  doctrine 
which  declares  law  to  be  merely  the  expres- 
sion of  the  "will  of  the  people"  is  a  doctrine 
of  the  American  Revolution ;  and,  therefore, 
necessarily  forms  a  part  of  the  American 
conception  of  the  State.  This  is  an  error. 

The  American  Revolution,  on  its  nega- 

106 


LAW    AS    A    SOVEREIGN    DECREE 

tive  side,  was  a  revolt  against  absolutism  in 
every  form;  and,  on  its  positive  side,  it  was 
a  defense  of  the  inalienable  rights  of  the 
individual.  It  was  an  appeal  to  general 
principles  of  justice  to  be  universally  ap- 
plied, and  as  much  opposed  to  the  arbitrary 
will  of  a  parliamentary  body  as  to  the  arbi- 
trary will  of  a  royal  person.  Its  whole 
character  was  determined  by  that  fact.  The 
French  Revolution,  on  the  contrary*,  was 
neither  of  these.  It  was  a  transfer  of  des- 
potism from  one  depository  to  another,  but 
not  a  revolt  against  despotism  as  such;  and 
it  was  not,  in  any  true  sense,  a  defense  of 
the  rights  of  the  individual,  but  an  assertion 
of  the  authority  of  the  mass.  All  the  power 
formerly  possessed  by  the  king  was  in  that 
revolt  taken  over  by  the  people,  undimin- 
ished  in  amount,  and  untempered  in  quality. 
The  despotism  of  the  Paris  mob  was  more 
fierce,  more  arbitrary,  and  more  sanguinary 
than  that  of  any  French  monarch  had  ever 

107 


THE    PEOPLE'S    GOVERNMENT 

been.  The  philosophy  of  the  State  adopted 
by  the  Revolution  was  virtually  unaltered. 
The  only  substantial  change  consisted  in  a 
substitution  of  the  absolute  power  of  the 
people  for  the  absolute  power  of  the  prince, 
and  its  motto  in  effect  was:  "Populus,  non 
prince ps>  legibus  solutus  est." 

The  correctness  of  this  statement  is  recog- 
nized and  affirmed  by  the  most  impartial 
and  authoritative  living  writers  of  France. 
Speaking  of  the  true  nature  of  the  Revolu- 
tion, Emile  Faguet,  of  the  French  Acad- 
emy, in  the  preface  to  a  recent  work,  asserts 
that  "the  French  Revolution  neither  en- 
throned individualism  nor  suppressed  abso- 
lutism. It  did  precisely  the  contrary.  It 
displaced  absolutism,  at  the  same  time  reen- 
forcing  it;  it  displaced  despotism  only  to 
exercise  it  more  forcibly;  and  it  did  nothing 
else.  It  put  the  sovereignty  of  the  people 
in  the  place  of  the  sovereignty  of  the  king, 
and  it  did  nothing  else.  The  omnipotence 

108 


LAW    AS    A    SOVEREIGN    DECREE 

of  the  people  in  place  of  the  omnipotence 
of  the  king;  the  omniscience  of  the  people 
in  place  of  the  omniscience  of  the  king;  the 
unlimited  property-right  of  the  people  in 
place  of  the  unlimited  property-right  of  the 
king ;  absolute  eff acement-  of  the  individual 
by  the  majority  of  his  compatriots  in  place 
of  the  absolute  effacement  of  the  individual 
by.  the  royal  authority;  Votre  Majorite  in 
place  of  Votre  Majeste — that  is,  without 
qualification,  the  sum  and  substance  of  the 
French  Revolution." 

No  language  could  more  truly  or  more 
clearly  lay  bare  the  inner  motives  of  that 
great  political  upheaval.  Between  the  con- 
ception of  the  State  entertained  by  Louis 
XIV  and  that  of  the  leaders  of  the  French 
Revolution  there  was  not  the  slightest  dif- 
ference. L'etat  c'est  moi  could  be  said  as 
truly  by  the  one  as  by  the  other.  Take  up 
one  after  another  the  successive  administra- 
tions, and  it  becomes  evident  that  power, 

109 


THE    PEOPLE'S    GOVERNMENT 

unlimited  and  irresponsible  power,  was  in 
the  minds  of  all  the  salient  attribute  of  the 
State.  The  Bastille  had  fallen;  but  the 
more  deadly  guillotine  was  established  as  a 
permanent  institution,  beneath  whose  glit- 
tering knife  the  royalists,  and  even  those 
suspected  of  sympathy  with  them,  were 
driven  en  masse,  without  distinction  of  age 
or  sex.  The  taint  of  "superiority"  in  name, 
or  blood,  or  fortune  was  a  sufficient  death- 
warrant.  It  is  interesting  to  note  the  con- 
stant crescendo  in  the  number  of  public 
assassinations.  From  November,  1793,  to 
March,  1794,  it  was  only  sixty-five  victims 
per  month;  but  in  the  full  tide  of  popular 
fury  the  number  increased.  In  the  month 
Ventose  of  the  year  II,  it  was  116;  in  Ger- 
minal, 155;  in  Floreal  it  was  354;  in  the 
first  three  weeks  of  Prairial  it  was  381 ;  and 
after  the  new  law  of  that  month  it  was  1,366 
in  forty-seven  days! 

This  is  not  the  place  in  which  to  speak  in 

110 


LAW    AS    A    SOVEREIGN    DECREE 

detail  of  the  indecency,  the  cruelty,  and  the 
sanguinary  rage  of  those  who,  by  the  will 
of  the  majority,  in  succession  possessed  the 
power  of  the  State,  and  in  their  turn  became 
its  victims.  "Are  ceremonies  necessary  to 
reduce  those  whom  the  people  have  already 
judged  as  criminals?"  cried  the  infamous 
Hebert;  and,  as  a  result,  the  Convention 
decreed  that  the  formalities  of  a  trial  might 
be  dispensed  with,  and  that  those  who  were 
popularly  condemned  should  perish  without 
an  opportunity  to  plead  in  their  defense. 
In  one  day  twenty-one  deputies  of  a  protest- 
ing minority  were  sent  to  the  scaffold. 

It  is  no  extenuation  of  these  horrors  to 
believe  that  the  perpetrators  of  them  were 
perfectly  sincere.  "We  shall  be  able  to  be 
human  when  we  are  assured  that  we  are  the 
victors,"  wrote  a  member  of  the  Comite  du 
Salut  Publique.  "It  is  our  purpose,"  wrote 
another,  "by  the  destruction  of  certain  in- 
dividuals to  secure  the  happiness  of  poster- 
in 


THE    PEOPLE'S    GOVERNMENT 

ity."  "The  sight  of  two  thousand  bloody 
corpses  thrown  into  the  Rhone,"  wrote 
Fouche  from  Lyons,  "impresses  upon  the 
beholders  on  its  two  shores  .  .  .  the  image 
of  the  omnipotence  of  the  People!33 

"The  omnipotence  of  the  People!" 
And  how  long  has  any  people,  unrestrained 
by  fixed  principles,  ever  remained  omnipo- 
tent? What  are  the  fruits  of  undirected 
popular  omnipotence,  the  omnipotence  of  a 
majority  swept  onward  by  a  tide  of  passion? 
Today  it  is  Robespierre  who  speaks,  saying : 
"The  Republic  is  to  be  constituted  by  the 
destruction  of  everything  which  is  opposed 
to  it.  He  is  culpable  who  does  not  approve 
the  'Terror*  " ;  whereupon  twenty  protesting 
members  of  the  Assembly  are  led  out  to  the 
guillotine.  Tomorrow — Robespierre  dead, 
in  turn  the  victim  of  the  popular  rage — it 
is  Malet  who  writes:  "The  mass  of  the  peo- 
ple, indifferent  to  the  Republic  as  to  the 
royalty,  seek  only  the  local  and  civil  advan- 

112 


LAW    AS    A    SOVEREIGN    DECREE 

tages  of  the  Revolution;  they  will  receive 
the  law  from  any  master  who  will  know 
how  to  enslave  them  by  appealing  to  their 
fears  and  hopes."  Thus  Napoleon  Bona- 
parte erects  his  empire  upon  the  grave  of 
the  Terrorists.  The  world,  governed  by  its 
interests,  prefers  its  safety  to  its  liberty; 
and  the  people's  will,  a  flickering  flame,  is 
extinguished  by  the  breath  of  the  dictator 
who  can  restore  to  them  the  security  of  life 
and  property. 

What,  then,  shall  be  said  of  the  famous 
"Declaration  of  the  Rights  of  Man  and  of 
the  Citizen"? 

The  first  thing  to  be  said  of  it  is,  that  it 
was  a  French  paraphrase  of  an  American 
document,  proposed  by  Lafayette,  and  soon 
forgotten.  The  next  thing  to  be  said  is, 
that,  according  to  a  contemporary  formula, 
it  was  by  its  nature  not  "the  law  for  the 
citizen,  but  the  law  for  the  legislator."  It 
was,  as  it  has  been  expressed,  "The  light 

9  113 


which  should  precede  the  law,  but  not  the 
law  itself  "  It  is  interesting  to  observe 
that  the  Declaration  of  Rights  has  never 
been  embodied  in  any  constitution  of 
France.  Immediately  after  its  adoption, 
Monier  declared:  "The  National  Assembly 
has  now  issued  from  the  vast  region  of  ab- 
stractions of  the  intellectual  world,  of  which 
it  has  so  painfully  traced  the  metaphysical 
legislation.  It  has  come  back  to  the  real 
world,  and  has  set  itself  to  frame  the  Con- 
stitution of  France."  Used  only  to  serve 
as  "the  condemnation  of  the  ancien  regime," 
as  a  recent  French  writer  has  expressed  it, 
the  Declaration  was  not  made  the  basis 
of  the  new  political  order.  It  never  became 
in  any  sense  the  law  of  France.  On  the 
contrary,  under  the  Republic  no  restraint 
was  placed  upon  the  "will  of  the  people." 
Each  citizen  was  conceived  as  possessing  a 
fractional  part  of  the  sovereignty,  and 
sovereignty  continued  to  mean  unlimited 

114 


LAW    AS    A    SOVEREIGN    DECREE 

authority.  The  majority,  unrestrained  by 
any  principle  whatever,  was,  therefore,  able 
to  express  the  sovereign  will  of  the  people 
and  to  represent  its  undisputed  power. 

ABSOLUTE  SOVEREIGNTY  A  DENIAL  OF  HUMAN 
RIGHTS 

It  is  not  difficult  to  perceive  that  this 
transfer  of  unlimited  power  from  the  prince 
to  the  people  adds  to  it  no  increment  of 
rightful  authority;  for  the  simple  reason 
that,  if  there  exists  in  the  individual  any 
inherent  and  inalienable  rights,  no  power 
whatever,  no  matter  how  constituted,  may 
rightly  take  them  away.  How  is  it  possible 
to  ascribe  to  a  mass  of  individuals  an  un- 
limited right  which  no  one  of  them  pos- 
sesses? Can  it,  then,  be  contended,  that 
absolute  sovereignty — that  is,  entire  free- 
dom from  the  restraint  of  law — is  a  defen- 
sible juridical  conception?  Is  it  not,  on  the 
contrary,  plainly  and  in  terms,  a  denial  of 

115 


THE    PEOPLE'S    GOVERNMENT 

subjection  to  law;  and,  in  effect,  therefore, 
a  denial  of  the  authority  of  law  altogether? 

It  would  seem  to  be  an  axiom,  that  a  mere 
aggregate  of  similar  units  cannot  contain 
any  qualities  which  no  one  of  them  contains. 
How,  then,  can  a  collection  of  mere  private 
wills,  considered  as  so  many  personal  ex- 
pressions of  desire,  or  interest,  or  determina- 
tion, possess  rightful  authority  over  any 
individual?  If  no  one  of  them,  regarded 
singly,  possesses  such  authority,  all  of  them 
together  do  not  possess  it.  If  there  is  noth- 
ing absolute  in  the  individual,  there  is  noth- 
ing absolute  in  the  mass.  A  fortiori,  there 
is  no  absolute  authority  in  mere  numerical 
preponderance.  Votre  Majorite  is  as  de- 
void of  unlimited  authority  as  Votre  Ma- 
jest  e. 

Certainly,  this  will  not  be  disputed  by 
anyone  who  accepts  the  doctrine  that  the 
individual  possesses  "inalienable  rights," 
whatever  they  may  mean ;  for,  if  such  rights 

116 


LAW    AS    A    SOVEREIGN    DECREE 

are  "inalienable,"  no  collection  of  persons, 
no  matter  how  numerous,  may  justly  take 
them  away.  If  it  be  merely  a  question  of 
force,  even  a  minority,  if  possessing  supe- 
rior power,  may  impose  its  absolute  will 
upon  the  individual,  and  may  even  reduce 
him  to  complete  servitude.  In  that  case, 
those  possessing  the  preponderance  may 
logically  go  to  the  limit  of  their  force  and 
deprive  him  of  everything  he  possesses, 
even  of  life  itself;  but,  if  it  be  a  question  of 
rightful  authority,  the  least  infraction  of  a 
right  is,  in  principle,  as  reprehensible  as 
entire  spoliation. 

We  are  here,  of  course,  speaking  only  in 
the  name  of  jurisprudence,  which  deals  ex- 
clusively with  rights  and  obligations;  and 
superiority  of  force  is  not  at  all  in  question. 
All  the  power  in  the  world  cannot  make 
wrong  right.  To  say  that  the  State  may 
arbitrarily  issue  commandments,  even  at  the 
behest  of  the  people,  and  enforce  them,  re- 

117 


THE    PEOPLE'S    GOVERNMENT 

gardless  of  individual  rights,  because  it  has 
the  power  to  do  so,  is  to  abandon  entirely 
the  ground  of  juridical  discussion,  and  pass 
without  logical  warrant  from  the  domain  of 
tight  to  the  domain  of  might. 

If  we  take  our  stand  solidly  upon  the 
ground  of  right,  we  perceive  that  no  form 
of  absolutism  is  defensible.  If  any  form  of 
it  could  be  tolerated,  it  would  be  that  which 
was  the  farthest  removed  from  personal  in- 
terest and  the  temptation  to  obtain  personal 
advantage;  but  there  is,  in  fact,  no  form  of 
it  which  is  free  from  this  temptation.  "A 
king,"  it  has  been  well  said,  "could  be  lib- 
eral and  impartial,  and  ought  to  be;  but 
he  never  is.3'  His  omnipotence  renders  him 
arbitrary.  He  will,  of  necessity,  impose 
his  own  views,  his  own  force,  his  own 
will,  or  he  will  virtually  cease  to  be  a 
king.  He  will  even  think  it  his  duty  to 
impose  them.  Is  it  not  precisely  for  this 
that  he  is  a  king?  But  his  views  and  his 

118 


LAW    AS    A    SOVEREIGN    DECREE 

will  are,  after  all,  only  those  of  an  individual. 

What,  then,  shall  be  said  of  absolutism  in 
a  group  of  individuals?  Who  among  them 
is  devoid  of  personal  interest?  Who  among 
them  is  fitted  for  absolute  rule?  What  is 
to  be  gained  by  this  multiplex  royalty,  in 
which  irresponsible  will  is  to  dominate? 
What  is  the  guarantee  that  populus  will  be 
wiser  or  more  just  than  prince ps,  if  placed 
above  the  law? 

It  may  be  said,  each  one  of  the  indi- 
viduals constituting  the  group  exercising 
power  possesses  "rights,"  and  a  decision  in 
which  the  majority  is  represented  will, 
therefore,  be  a  right  decision.  But  what  of 
the  minority  rights  that  are  not  represented? 
And  what  is  the  ground  of  assurance  that 
they  will  even  be  considered,  if  they  are 
opposed  to  the  will  of  the  majority?  But 
are  these  not  equally  valid,  and  are  they  not 
equally  worthy  of  respect?  What  "right," 
then,  can  a  portion  of  the  community 

119 


THE    PEOPLE'S    GOVERNMENT 

have  to  disregard  or  overrule  those  rights? 
Let  it  be  admitted,  therefore,  once  for  all, 
that  it  is  upon  a  voluntary  and  universal 
respect  for  rights  that  public  authority  must 
be  founded.  There  is  no  other  ground  upon 
which  true  sovereignty  can  be  based.  Un- 
limited sovereignty  has  as  little  justification 
in  the  people  as  in  the  prince.  ^  The  maxim, 
"legibus  solutus"  has  no  application  in  the 
sphere  of  jurisprudence.  It  is  the  denial 
of  its  existence.  Every  man,  every  com- 
munity, every  so-called  sovereign  state  is 
bound  to  limit  the  range  of  action,  and  must 
either  recognize  the  obligation  to  observe 
the  principles  of  justice  or  confess  to  open 
disregard  of  them. 

THE    TRUE    FOUNDATION    OF    THE    STATE 

What,  then,  is  the  true  foundation  of  the 
State,  and  of  its  authority  to  regulate  the 
conduct  of  men? 

120 


LAW    AS    A    SOVEREIGN    DECREE 

Sovereignty,  in  some  sense,  the  State 
must  possess,  but  it  is  a  derived  and  not  an 
inherent  authority;  and  it  is  subject  to  the 
limitations  of  its  source.  That  source  is 
the  community  and  correlation  of  rights 
possessed  by  the  persons  who  compose  its 
citizenship. 

This  form  of  statement  is  designed  to 
mark  the  distinction  between  the  interests, 
desires,  and  volitions  of  men  on  the  one 
hand,  and  their  mutual  obligations  on  the 
other;  for  "rights"  are  not  to  be  identified 
with  any  of  the  former,  and  are  to  be  de- 
fined only  in  terms  of  the  latter.  It  may  be 
my  interest,  my  desire,  or  my  volition  to 
possess  what  is  already  rightfully  possessed 
by  another;  but  it  is  not  my  right  to  claim 
it.  My  right,  whatever  it  may  be,  is  only 
another  name  for  your,  and  all  other  men's, 
"duties"  toward  me. 

This,  then,  is  what  is  meant  by  the  "com- 
munity" of  rights.  If  only  one  man  existed 

121 


THE    PEOPLE'S    GOVERNMENT 

in  the  world,  he  could,  no  doubt,  without 
restraint  appropriate  everything  he  found 
useful;  but  he  could  not  be  said  to  possess 
any  "rights."  The  conception  of  rights 
would  be  impossible.  Rights  exist  only  in 
a  community.  The  conception  arises  from 
the  idea  of  mutual  obligation. 

We  perceive  here  also  what  is  meant  by 

t. 

the  "correlation"  of  rights.  Rights  are  al- 
ways relative.  There  exists  no  unlimited 
right,  in  any  definable  or  conceivable  sense; 
for,  where  there  is  no  limit  to  a  pretension, 
there  is  no  means  of  stating  what  right 
exists.  An  unlimited  right  is,  therefore,  in 
effect,  mentally  inconceivable.  Rights  are 
correlative,  because  the  objects  which  they 
concern  are  con-terminous.  My  field  is 
bounded  by  your  field.  Neither  you  nor  I 
can  rightly  possess  the  whole  earth,  so  long 
as  either  of  us  has  any  just  claim  upon  it. 
In  relation  to  your  right  is  set  my  duty  to 
respect  it,  and  in  relation  to  my  right  your 

122 


LAW    AS    A    SOVEREIGN    DECREE 

duty  is  equally  evident.  Neither  the 
"right"  nor  the  "duty"  exists  by  itself. 
Both  arise  from  a  mutual  obligation. 

THE    RELATION   OF    RIGHTS    TO   LAW 

All  this,  it  may  be  said,  is  entirely  true  in 
the  sphere  of  ethics,  but  it  is  not  a  clear 
statement  of  the  nature  of  "rights"  as  un- 
derstood in  law. 

In  law,  only  that  is  regarded  as  a  "right" 
which  can  be  enforced  by  public  authority. 
In  this  sense,  rights  are  not  "inherent,"  they 
are  usually  the  results  of  a  status  some- 
how acquired;  frequently  by  some  exercise 
of  force,  or  by  concessions  made  in  view  of 
the  possible  employment  of  force.  In  law, 
men  possess  only  such  rights  as  they  have 
been  able  to  make  respected. 

It  is  not  to  be  denied  that,  for  the  prac- 
tical lawyer  and  his  client,  there  might  as 
well  not  exist  any  so-called  "inherent,"  "in- 

123 


THE    PEOPLE'S    GOVERNMENT 

alienable,"  or  "natural"  rights;  since  these, 
if  they  exist  at  all,  can  be  enforced  only  in 
so  far  as  they  have  secured  some  outward 
form  of  guarantee.  It  is  customary  to  de- 
scribe these  "rights"  as  merely  "subjective"; 
and,  therefore,  practically  non-existent. 

It  is  precisely  this  distinction  between 
"inherent"  and  "legal"  rights^  that  renders 
important  a  study  of  the  authority  of  the 
law-making  powrer;  for,  when  the  matter  is 
looked  at  historically,  we  see  that  rights  have 
generally  been  treated  as  if  they  were  not 
inherent  but  the  gracious  gift  of  govern- 
ments. Historical  jurisprudence  busies  it- 
self with  showing  how  legal  rights  have 
actually  been  acquired,  either  by  the  grace 
of  sovereigns  or  the  successful  urgency  of 
subjects.  But,  since  the  historic  State  was 
originally  a  mere  embodiment  of  force,  it  is 
not  in  the  history  of  the  State,  but  in  the 
history  of  thought  about  the  State  that  we 
must  seek  the  evidence  that  there  are  inher- 

124 


LAW    AS    A    SOVEREIGN    DECREE 

ent  rights;  which,  although  long  unrecog- 
nized and  left  without  guarantees,  are 
nevertheless  as  real  as  any  part  of  human 
experience. 

If  we  turn  from  the  history  of  the  State 
to  the  history  of  human  thought,  with  which 
the  mere  legalist  may  consider  he  has  noth- 
ing to  do,  we  find  that  the  growth  of  law 
is  nothing  else  than  the  progressive  embodi- 
ment of  principles  of  justice  inherent  in 
human  reason. 

Without  the  State,  men  would  not  be  se- 
cure in  the  enjoyment  of  any  rights;  for 
life,  liberty,  and  property  would  have  no 
protection,  and  the  individual  would  be  ex- 
posed to  violence,  pillage,  and  slavery.  The 
State  takes  possession  of  him;  and,  in  re- 
turn for  tribute  as  the  price  of  its  protection 
and  obedience  to  its  unquestioned  authority, 
rescues  him  from  these  evils. 

As  it  has  become  more  intelligent,  the 
State  has  recognized  more  and  more  fully 

125 


THE    PEOPLE'S    GOVERNMENT 

the  inherent  rights  of  its  subjects.  At  first 
the  conqueror  who  dictated  the  law  slew  the 
vanquished  and  carried  their  wives  and  chil- 
dren into  captivity.  Then  came  one  who, 
with  greater  wisdom  and  foresight,  en- 
camped his  nomad  horde  upon  the  soil  of 
the  conquered  territory;  and,  instead  of 
murdering  and  robbing  the  inhabitants,  set 
them  to  work  as  serfs  upon  the  land,  claim- 
ing only  a  portion  of  their  products  for  his 
superior  vassals,  who  in  turn  paid  tribute  to 
him,  and  waited  upon  him  at  his  court,  where 
the  privileges  granted  could,  if  opposed,  be 
vindicated.  In  time  the  serfs  were  emanci- 
pated, the  larger  landowners  were  granted 
the  right  of  assembly,  and  thus  the  "com- 
mons" came  at  last  to  participate  even  in 
the  making  of  laws,  subject  to  the  ap- 
proval of  the  king  and  the  lords. 

This  happened  in  England  at  a  compara- 
tively early  date ;  but,  even  in  that  advanced 
political  system,  the  "inherent"  and  "in- 

126 


LAW    AS    A    SOVEREIGN    DECREE 

alienable"  rights  of  man  as  an  individual 
were  never  explicitly  guaranteed. 

And  yet,  whatever  learned  jurists  may 
say  about  it,  it  is  certain  that  legislation 
can  never  cease  until  the  human  conscience 
is  satisfied.  There  are  certain  fundamental 
human  rights  that  are  so  clear,  so  urgent, 
and  so  indisputable  in  their  outcry  for  se- 
curity, that  the  undertone  of  their  pleading 
runs  through  all  the  free  expressions  of  the 
human  mind  since  thought  has  been  re- 
corded. Our  fathers  of  the  colonial  period 
in  this  country  felt  the  moral  pressure  of 
this  aspiration  for  legalized  security. 
Rightly  or  wrongly,  as  measured  by  other 
systems  of  legislation,  our  system  was 
founded  by  men  who  believed  in  certain 
"natural  rights"  as  firmly  as  any  Roman 
Stoic  ever  did.  Life,  liberty,  and  property, 
in  their  opinion,  required  guarantees  that 
they  would  not  be  exposed  to  the  hazards 
of  any  mere  decree,  or  of  any  unequal  law; 

127 


THE    PEOPLE'S    GOVERNMENT 

and  any  sovereign  act  that  had  that  effect, 
even  though  sustained  by  a  majority  of  the 
people,  they  intended  to  make,  ipso  facto, 
null  and  void. 

And  what  is  the  significance  of  this?  It 
signifies  that,  in  the  United  States,  the  con- 
ception of  "inalienable  rights"  lies  back  of 
our  whole  system  of  legislation.  It  signi- 
fies that  there  is  no  power  recognized  under 
our  government  that  can  legislate  by  decree. 
It  signifies  that  there  are  "natural  rights" 
inherent  in  the  individual  which  all  law- 
makers must  respect.  It  signifies  that, 
whatever  may  be  true  in  other  countries  and, 
therefore,  taught  as  true  in  our  country, 
there  is  one  country  in  the  world  where, 
until  the  present  at  least,  the  individual  pos- 
sesses guarantees  which  no  power — not  even 
that  of  popular  majorities — can  take  away. 
And  this  is  not  a  theory  or  an  inference;  it 
is  the  law. 


128 


LAW    AS    A    SOVEREIGN    DECREE 

THE    SUPREMACY   OF   LAW 

It  may  be  said,  and  with  perfect  truth, 
that,  having  been  embodied  in  the  organic 
law  of  the  land,  the  so-called  "inherent" 
and  "inalienable"  rights  of  the  individual 
have,  in  fact,  become  objective. 

That  which  it  is  here  important  to  note 
is,  that  legislation  can  no  longer  be  legally 
arbitrary.  It  is  limited  to  a  prescribed 
channel  beyond  which  its  flood-tide  cannot 
pass.  It  may  flow  on,  and  on,  without  ces- 
sation, until  every  subjective  right  is  ren- 
dered objective;  that  is,  until  the  law  be- 
comes the  embodiment  of  perfect  justice. 
As  intelligence  becomes  more  keen  and  more 
comprehensive,  the  law  will  become  more 
specific,  and  both  its  positive  and  its  nega- 
tive phases  may  be  greatly  enlarged;  but, 
so  long  as  the  conception  of  our  system 
remains  fundamentally  unaltered,  there  will 
be  no  legitimate  place  for  absolutism.  There 
10  129 


THE    PEOPLE'S    GOVERNMENT 

will  be  in  the  whole  wide  field  of  public 
authority  no  person,  no  party,  no  class,  and 
no  section  which  can  arbitrarily  issue  its  de- 
crees, or,  as  a  "supreme  authority,"  impose 
its  "commandments"  upon  "persons  wholly 
subordinate  to  it."  There  will  continue  to 
be  not  only  laws  for  the  people — equal  and 
just  laws  for  all  the  people — but  law  for  the 
law-makers  also. 

Is  it  possible  to  maintain  against  the 
strong  tide  of  absolutist  theory  and  abso- 
lutist interests  the  undiminished  supremacy 
of  law?  That  is  the  gravest  question  which 
can  be  addressed  to  a  nation  composed  of 
free  and  law-respecting  citizens.  To  an- 
swer it,  we  must  thoroughly  comprehend 
not  only  what  the  law  is  not,  but  what  in 
its  essence,  as  understood  by  us,  it  is  and 
should  remain. 

The  present  is  a  time  peculiarly  fitting 
for  reflection  upon  this  subject.  Old  forms 
of  absolutism  are  visibly  perishing.  Shall 

130 


LAW    AS    A    SOVEREIGN    DECREE 

new  forms  of  absolutism  take  their  place, 
or  shall  we  be  able  to  repress  it  altogether? 
If  we  are  to  do  so,  it  is  necessary  to  reex- 
amine  not  only  the  foundations  of  the  State, 
but  the  nature  of  its  authority  in  relation 
to  the  individual.  There  is  no  safety  in  the 
increased  power  of  the  people,  unless  the 
people  are  prepared  to  use  their  power  in  a 
spirit  of  perfect  justice. 


IV 

LAW   AS    MUTUAL 
OBLIGATION 


IV 

LAW   AS    MUTUAL   OBLIGATION 

If,  from  the  point  of  view  of  jurisprud- 
ence, there  exists  in  human  society  no  un- 
limited right  of  legislation,  either  by  the 
prince  or  by  the  people,  it  is  necessary  to 
determine  where  the  proper  limit  of  legisla- 
tive authority  is  to  be  found. 

Without  doubt,  the  State,  in  order  to 
realize  the  purpose  for  which  it  exists — 
namely,  to  establish  order,  and  to  afford 
security  to  the  rights  of  the  individuals  who 
compose  it — must  possess  some  power  of 
restraint;  that  is,  it  must  be,  in  some  sense, 
sovereign.  The  legitimate  source  of  this 
sovereignty,  in  the  light  of  what  has  been 
said,  is  evident.  It  is  the  same  as  that  from 
which  all  individual  rights  are  derived — the 

135 


THE    PEOPLE'S    GOVERNMENT 

mutual  obligations  of  the  individuals  who 
compose  the  community. 

It  is  essential  at  this  point  to  comprehend 
the  significance  of  this  statement.  What  is 
the  precise  meaning  of  a  "right?"  What 
do  we  have  in  mind  when  we  speak  of  a 
right  as  "inherent,"  and  "inalienable"? 

There  are  those  who  would  reply  that 
these  terms  "inherent"  and  %  "inalienable" 
are,  in  fact,  meaningless.  There  are  in  the 
real  world,  they  contend,  only  concrete 
forces  and  their  relations.  When  men  have 
obtained  possession  of  certain  material 
things,  or  control  certain  forces,  or  have 
established  certain  social  conditions  which 
they  can  maintain,  they  may  be  said  to  have 
certain  "rights";  that  is,  "rights"  are  only 
such  relations  between  persons  as,  if  ques- 
tioned, can  be  maintained  by  force.  The 
rules  of  action  which  grow  out  of  such  en- 
forced relations  constitute  the  law. 

This  theory  of  "rights"  is,  in  truth,  a 

136 


LAW    AS    MUTUAL    OBLIGATION 

denial  of  all  essential  rightf ulness ;  and  is 
only  another  way  of  declaring  that,  in  the 
last  analysis,  might  is  right.  If  it  were 
correct,  we  might  with  propriety  eliminate 
the  word  right  and  its  equivalents  from  our 
vocabulary,  and  confine  ourselves  to  the 
categories  of  success  and  failure.  There 
would  then  be  for  jurisprudence  no  place 
in  the  realm  of  thought.  We  should  be 
compelled  to  confess  that  force  is  the  legiti- 
mate ruler  of  the  world,  and  that  right  is  a 
mere  fiction  of  the  mind. 

THE    INTUITION    OF    OBLIGATION 

If  the  conception  of  "rights"  as  inherent 
and  inalienable  were  a  merely  personal  and 
transient  phase  of  thought,  it  might  be 
necessary  to  accept  this  conclusion,  and  to 
speak  of  so-called  "inherent  rights"  as  mere 
individual  aspirations.  In  view  of  the  whole 
history  of  thought,  however,  we  cannot  ad- 

137 


THE    PEOPLE'S    GOVERNMENT 

mit  that  position.  Whatever  the  changing 
dispositions  of  force  may  have  been,  the 
idea  that  human  personality,  as  such,  is  en- 
titled to  some  consideration  is  as  universal 
as  human  consciousness.  Various  as  may 
be  the  personal  estimates  of  what  is  intrin- 
sically right  or  wrong  in  human  relations, 
there  has  never  existed  a  tribe  of  savages  so 

% 

low  in  intelligence  as  not  to  recognize  the 
existence  of  some  rights  and  duties,  entirely 
apart  from  every  form  of  physical  compul- 
sion. Not  only  so,  but  if  there  be  any 
standard  by  which  degrees  of  superiority  in 
human  intelligence  can  be  determined,  it  is 
to  be  found  precisely  in  the  development  of 
the  faculty  which  distinguishes  between 
what  "ought"  and  what  "ought  not"  to  be 
done,  or  to  be  endured. 

It  is,  then,  from  this  intuition  of  mutual 
obligation  that,  under  the  guidance  of  rea- 
son, all  human  authority  is  to  be  derived; 
per  contra,  it  cannot  possibly  exceed 

138 


LAW   AS    MUTUAL   OBLIGATION 

the  limits  of  the  source  from  which  it 
springs. 

It  is  true,  that  such  an  intuition,  giving 
rise  to  the  idea  of  "rights"  on  the  one  hand 
and  of  "duties"  on  the  other — the  essential 
correlates  of  the  idea  of  obligation — is 
merely  a  form  of  intelligence,  without  con- 
crete content,  until  it  is  applied  to  the 
materials  of  experience.  It  is  analogous  to 
the  mathematical  intuitions  which  furnish 
the  regulative  norms  of  all  exact  science. 

What  is  here  most  important  to  consider 
is,  that  in  such  an  intuition  there  is  no  ele- 
ment of  will,  or  interest,  or  sensibility. 
There  is  in  it  no  element  of  personal  deter- 
mination. Its  whole  purport  is,  that  some- 
thing is  seen  to  be  true,,  namely,  that  in  any 
organized  community  of  men  there  must  be 
mutuality  of  obligation.  Each  has  his 
sphere  of  private  interests  which  all  others 
are  in  justice  bound  to  respect.  If  they 
do  respect  them,  that  is  right ;  if  they  do  not 

139 


THE    PEOPLE'S    GOVERNMENT 

respect  them,  that  is  wrong.  Thus  far 
speaks  the  intuition;  but  the  specific  appli- 
cation of  it  depends  upon  a  process  of  rea- 
soning. Reason  furnishes  us  with  self-evi- 
dent principles,  but  it  is  necessary  for  us 
concretely  to  apply  them.  We  do  not 
create  them,  and  we  cannot  alter  them.  We 
simply  see  that  they  are  true  and  fit  for 

%. 

guidance. 

THE    APPLICATION    TO   EXPERIENCE 

It  was  just  stated  that  each  person  has 
a  sphere  of  private  interests  which  all  others 
ought  to  respect.  Here,  then,  are  the  con- 
crete contents  of  experience  to  which  the 
form  of  intelligence  must  be  applied.  This 
realm  of  interests,  desires,  and  volitions  is, 
of  course,  strictly  personal;  for  it  relates  to 
the  realm  of  material  things,  where  the  ques- 
tion of  personal  claims  and  the  definite 
limitation  of  rights  are  to  be  decided. 
What,  then,  are  the  rules  of  action  that  are 

140 


LAW    AS    MUTUAL    OBLIGATION 

to  be  applied  in  this  sphere  of  conflicting 
wills,  where  opposing  forces,  animated  by 
contrary  purposes,  are  engaged  in  partition- 
ing the  desiderata  of  existence? 

It  is  at  this  point  that  mutual  obligation 
assumes  the  form  of  particular  laws;  and 
the  law,  from  this  point  of  view,  consists  in 
the  specific  formulas  in  which  mutual  obli- 
gation is  expressed.  It  is  here  that  inher- 
ent or  subjective  rights  are  transformed  into 
objective  rights. 

Before  we  proceed  to  examine  the  process 
of  law-making  more  closely,  it  may  be  use- 
ful to  consider  briefly  the  contents  of  the 
sphere  of  personal  interests,  desires,  and 
volitions.  They  are,  in  fact,  as  varied  as 
the  circumstances  of  human  experience;  for 
they  include  the  whole  volume  of  it.  Life, 
liberty,  property — all  that  men  possess  or 
aspire  to  possess,  all  that  they  may  do  or  be 
precluded  from  doing — fall  within  its  scope; 
and  yet  there  is  one  capital  exception;  the 

141 


THE    PEOPLE'S    GOVERNMENT 

law  cannot  reach  the  inner  shrine  of  per- 
sonal consciousness,  cannot  compel  and  can- 
not hinder  the  silent  operation  of  the  mind, 
the  free  play  of  the  affections,  and  the  in- 
tuitions of  the  moral  sense.  It  can  only 
deal  with  things  external,  with  forms  of  ex- 
pression and  modes  of  action.  Its  domain 
is  exclusively  the  outward  relations  of  men. 
When  it  would  go  farther,  it  discovers  that 
there  is  in  the  world  something  other  than 
force,  something  which  force  cannot  reach 
and  cannot  alter.  When  it  has  done  its  ut- 
most, the  law  reaches  limits  which  it  cannot 
pass.  There  is  something  always  reserved 
to  the  human  soul,  which,  within  its  own 
sphere,  is  answerable  only  to  its  Creator. 

THE    RIGHT  TO   LIFE 

There    remains,    however,    an    extended 
realm  in  which  the  law  is  operative.     It  in- 
cludes all  that  is  outward  and  tangible;  and 
142 


LAW    AS    MUTUAL   OBLIGATION 

thus,  at  least  so  far  as  the  body  is  concerned, 
may  affect  our  very  existence.  The  law, 
even  when  based  on  mutual  obligation,  may 
go  so  far  as  to  deny  a  man's  right  to  exist. 
If  he  will  not  respect  the  lives  of  others,  he 
may  be  condemned  to  death. 

It  is  here,  perhaps,  that  we  may  most 
conveniently  explain  the  meaning  of  a 
right  as  "natural"  and  "inherent."  It 
cannot  be  contended,  even  by  the  most 
strenuous  opponent  of  the  idea  of  so- 
called  "natural"  rights,  that  the  right  to 
live  is  acquired  through  the  enactment  of 
some  positive  law  by  which  this  privilege  is 
accorded.  If  it  be  not  inherent,  if  it  be  not 
natural,  then  it  is  no  right  at  all.  It  is  true 
that  a  natural  right  may  be  forfeited;  be- 
cause, resting  upon  mutual  obligation  as 
its  ground  principle,  where  that  is  repudi- 
ated the  right  can  no  longer  be  said  to  exist. 
It  is  evident,  however,  that  such  a  right  can- 
not be  forfeited  except  by  the  person  him- 

143 


THE    PEOPLE'S    GOVERNMENT 

self.  Not  having  been  accorded  by  the 
community,  the  community  cannot  arbitrar- 
ily take  it  away;  for,  arising  from  the  prin- 
ciple of  mutual  obligation,  the  right  of  the 
individual  is  as  incontestable  as  the  right 
of  existence  on  the  part  of  the  community 
itself. 

Such  a  right,  it  may  be  replied,  is,  after 
all,  only  metaphysical;  and  this  is  true. 
Physically,  no  man's  life  is  secure,  unless  he 
possesses  guarantees  that  it  will  be  pro- 
tected. It  is  precisely  to  supply  these 
guarantees  that  the  State  exists;  and  it, 
therefore,  becomes  the  duty  of  the  State  to 
afford  this  protection.  But  what  shall  be 
said  of  a  State  that  does  not  assume  this 
duty,  or  does  not  even  recognize  this  right? 
And  what  shall  be  said  of  a  form  of  sover- 
eignty so  absolute  that  it  possesses  the  au- 
thority to  take  or  to  sacrifice  life  where  it 
pleases,  and  for  whatever  reason  may  suit 
its  convenience? 

144 


LAW    AS    MUTUAL    OBLIGATION 

What  shall  be  said  of  the  right  of  a  gov- 
ernment, first,  to  declare  war  for  the  pur- 
pose of  conquest;  and,  second,  by  conscrip- 
tion to  force  men  to  leave  their  business 
and  their  families,  to  take  up  arms,  and  to 
fight  in  an  aggressive  war  for  the  purpose 
of  increasing  the  resources  of  the  State? 

Undoubtedly,  from  the  point  of  view  of 
absolute  sovereignty,  a  government  may  do 
these  things,  and  may  pass  laws  for  this  pur- 
pose ;  but  the  moment  we  stop  to  reflect  upon 
it,  is  it  not  apparent  that  such  a  right  can 
never  be  deduced  from  the  principle  of  mu- 
tual obligation? 

For  a  defensive  war,  however,  or  for  a 
war  rendered  necessary  to  secure  the  evident 
rights  of  the  State  which  cannot  be  secured 
in  any  other  way,  the  decision  would  be  dif- 
ferent. In  that  case,  does  it  not  become 
the  plain  duty  of  every  able-bodied  citizen 
to  aid  in  the  defense  of  his  country,  or  in 
the  protection  of  the  indisputable  rights  of 

11  145 


THE    PEOPLE'S    GOVERNMENT 

his  country,  if  it  is  necessary,  even  though 
this  may  involve  the  sacrifice  of  his  life? 

And  here  we  are  able  to  see  the  profound 
difference  between  the  conception  of  the 
State  which  is  based  upon  the  idea  of  sov- 
ereignty as  absolute,  and  that  which  is 
based  upon  the  idea  of  sovereignty  as  the 
expression  of  inherent  rights  and  mutual 
obligation.  In  the  one  case  we  have  a 
conception  that  accords  to  a  government 
the  right  of  war  for  any  purpose,  in  the 
other  a  conception  that  limits  the  right  of 
war  to  the  defense  of  rights  that  cannot 
otherwise  be  vindicated. 


THE    RIGHT   TO   LIBERTY 

Much  that  has  been  said  of  life  may  also 
be  said  of  liberty.  But  here  we  enter  di- 
rectly upon  the  concrete  contents  of  experi- 
ence, and  the  question  at  once  arises:  How 
much  liberty  shall  the  individual  be  granted? 

146 


LAW    AS    MUTUAL    OBLIGATION 

There  is  a  certain  sphere  within  which  free 
activity  must  be  permitted;  but  it  cannot 
be  unlimited;  for,  if  it  were,  it  would  inev- 
itably encroach  upon  the  liberty  of  others, 
and  thus  by  setting  no  bounds  to  liberty,  it 
would  virtually  cease  to  exist. 

At  this  point  an  important  distinction  be- 
comes apparent.  The  right  to  live  is  in- 
herent and  natural,  but  it  is  distinctly  meta- 
physical. When  it  emerges  into  the  world 
of  reality,  when  it  confronts  the  actual  con- 
tents of  experience,  the  right  to  live  turns 
out  to  be  a  poor  prerogative,  unless  it  is 
supplemented  with  another  right,  the  right 
to  earn  a  living.  This  right  also  is  natural 
and  inherent,  but  it  is  not  a  merely  meta- 
physical right.  It  requires  outward  liberty. 
It  demands  a  sphere  of  free  activity,  in 
which  the  energies  of  the  individual  may  be 
put  forth  in  the  form  of  industry  and  enter- 
prise, for  the  purpose  of  acquiring  the  means 
of  subsistence.  Here,  again,  the  State  be- 

147 


THE    PEOPLE'S    GOVERNMENT 

comes  necessary.  Other  individuals  may 
concede  to  a  person  the  right  to  live,  but 
deny  or  obstruct  his  freedom  in  employing 
his  faculties  for  the  purpose  of  obtaining  a 
living.  At  this  point,  the  law  must  speak. 
Its  source  is  evident  and  its  authority  is  un- 
questionable. It  is  mutual  obligation.  No 
man  and  no  group  of  men  cap  rightly  pre- 
vent the  free  activity  of  a  member  of  the 
community  in  prosecuting  his  chosen  indus- 
try or  enterprise,  so  long  as  it  does  not 
interfere  with  the  equal  liberty  of  all  others 
to  do  the  same. 

And  what  is  true  of  industrial  freedom  is 
equally  true  of  the  liberty  of  expression,  of 
instruction,  of  assembly,  and  of  association. 
All  the  energies  of  men,  and  all  the  personal 
preferences  of  men,  within  the  community, 
have  an  equal  right  to  freedom,  so  long  as 
they  do  not  interfere  with  corresponding 
prerogatives  on  the  part  of  others.  But  in 
this  field  of  activity  absolutism  is  peculiarly 

148 


LAW    AS    MUTUAL    OBLIGATION 

tempted  to  assert  itself.  Class  interests 
sometimes  assume  an  attitude  of  arrogance, 
and  endeavor  to  employ  their  preponderance 
of  force  to  assert  their  supremacy  by  the 
dictation  of  special  laws.  It  is  needful, 
therefore,  that  personal  liberty  should  re- 
ceive sufficient  guarantees;  for  it  is  by  re- 
pression, as  well  as  by  compulsion,  that 
natural  rights  are  rendered  nugatory. 

THE    RIGHT   TO   PROPERTY 

It  is  when  we  arrive  at  the  consideration 
of  the  results  of  industry  and  enterprise 
that  we  reach  that  form  of  the  contents  of 
experience  which  has  been  in  the  past,  and 
promises  to  be  in  the  future,  one  of  the  chief 
battlefields  of  legislation.  To  the  man  who 
finds  himself  in  a  condition  of  want,  prop- 
erty may  appear  to  be,  as  Proudhon  said, 
a  "crime."  To  the  one  who,  by  toil,  thrift, 
sacrifice,  and  abstinence  has  acquired  a  com- 

149 


THE    PEOPLE'S    GOVERNMENT 

petence,  it  seems,  on  the  contrary,  to  be  a 
symbol  of  virtue. 

It  cannot,  perhaps,  be  maintained  that 
property  is,  in  itself,  a  natural  or  inherent 
right;  since  it  lies  wholly  outside  of  person- 
ality, and  is  something  that  has  to  be  ac- 
quired. It  may  be  regarded  as,  in  some 
sense,  a  personal  appropriation  of  a  part  of 
what  from  one  point  of  view  may  be  con- 
sidered as  common  stock.  A  more  intelli- 
gent way  to  put  the  question  is,  therefore, 
this:  Is  there  any  inherent  or  natural  right 
to  acquire  and  enjoy  property? 

Thus  formulated,  the  question  is  equiva- 
lent to  the  inquiry:  Is  there  a  natural  or 
inherent  right  to  possess  and  enjoy  the 
fruits  of  one's  industry  or  enterprise? 

Here,  as  in  every  other  instance  where 
the  true  nature  of  the  law  is  in  question,  it 
is  necessary  to  revert  to  the  source  of  all 
rights,  and  hence  of  all  public  authority, 
namely,  mutual  obligation.  Is  it  conceivable 

150 


LAW    AS    MUTUAL    OBLIGATION 

that  the  industrious  and  the  idle,  the  thrifty 
and  the  wasteful,  the  provident  and  the  im- 
provident should  possess  and  enjoy  the  same 
desiderata  of  life? 

The  problem  of  the  right  of  property  is 
greatly  simplified  by  treating  the  subject 
genetically  rather  than  from  a  purely  mathe- 
matical point  of  view.  It  is,  when  properly 
analyzed,  seen  to  be  only  one  particular 
aspect  of  the  right  to  personal  liberty.  Shall 
the  individual  be  permitted  to  produce  by 
his  industry  and  his  enterprise  such  value  as 
he  can,  without  interfering  with  the  equal 
right  of  others,  and  be  allowed  to  enjoy  the 
benefit  of  his  endeavors?  Or  shall  he  be 
compelled  to  limit  his  powers  of  production 
on  the  one  hand,  or  surrender  a  portion  of 
the  results  on  the  other? 

There  is  in  the  principle  of  mutual  obli- 
gation nothing  that  justifies  either  the  sup- 
pression of  productive  powers  or  the  en- 
forced surrender  of  the  results  of  their  ex- 

151 


THE    PEOPLE'S    GOVERNMENT 

ercise.  The  former  would  lead  to  compul- 
sory poverty,  and  the  latter  to  a  condition 
of  serfdom  in  which  capacity  would  become 
the  slave  of  incapacity.  It  is,  therefore, 
impossible  to  organize  human  society  upon 
any  just  principle  without  admitting  the 
right  of  property  as  a  consequence  of  the 
innocent  exercise  of  individual  powers  of 
creating  wealth. 

THE    PROBLEM    OF    PARTITION 

But,  even  considering  the  right  of  prop- 
erty as  merely  a  particular  aspect  of  per- 
sonal liberty,  it  must  not  be  overlooked  that 
most  property  is  the  result  of  joint  effort. 
There  arises,  therefore,  the  problem  of  par- 
tition. As  an  aspect  of  liberty  the  right  of 
property,  when  the  result  of  joint  effort, 
involves  a  limitation.  There  remains  the 
question:  How  much  to  each  producer? 

This,  however,  does  not  seem  to  be  a  prob- 

152 


LAW    AS    MUTUAL    OBLIGATION 

lem  for  solution  by  the  authority  of  the 
State,  unless  the  State  may  claim  the  right 
to  divide  the  whole  proceeds  of  industry  and 
enterprise,  for  which  it  could  show  no  war- 
rant. Even  if  it  were  itself  a  participant, 
it  could  only  claim  its  own  share ;  and  in  this 
the  inactive  constituents  of  the  State  would 
have  no  part.  The  proportions  of  effort 
being  of  necessity  variable,  no  law  on  this 
subject  could  be  devised  on  the  basis  of 
mutual  obligation.  The  units  of  efficiency 
contributed  not  being  equal,  it  would  be  un- 
reasonable to  divide  equally  the  rewards  of 
production.  These  units  not  only  have  dif- 
ferent values  at  different  times,  but  they  are 
essentially  disparate  in  their  nature  and  in 
their  cost  of  maintenance. 

It  would  appear,  therefore,  that  the  only 
manner  in  which  mutual  obligation  can  be 
recognized  in  the  process  of  wealth  produc- 
tion is  by  permitting  the  partners  in  this 
process  freely  to  estimate  the  value  of  their 

153 


THE    PEOPLE'S    GOVERNMENT 

respective  contributions  by  making  specific 
contracts  in  each  particular  case. 

THE    INJUSTICE    OF    MONOPOLY 

The  just  limit  of  the  law  in  solving  the 
problem  of  partitioning  the  results  of  joint- 
production  would,  therefore,  seem  to  be  the 
public  guarantee  of  entire  freedom  in  mak- 
ing private  contractual  engagements,  so 
long  as  these  do  not  infringe  upon  the  lib- 
erty of  others.  There  is,  however,  a  prac- 
tical difficulty  in  preventing  this  infringe- 
ment; for  it  is  possible,  through  association, 
for  some  of  the  participants  in  production  to 
impose  their  will  upon  the  others,  thus  in- 
terfering with  real  liberty  of  contract  by 
taking  advantage  of  their  necessities.  The 
case  is  illustrated  when  capitalists  combine 
to  obtain  possession  of  the  tools  and  mate- 
rials of  production  to  such  an  extent  that 
they  can  arbitrarily  impose  the  conditions 

154 


LAW    AS    MUTUAL    OBLIGATION 

of  the  enterprise  by  controlling  either  the 
means  of  production  or  the  price  of  the  prod- 
uct to  their  private  advantage.  It  is  equally 
well  illustrated  when  labor  is  so  centrally 
controlled  as  to  confine  participation  in  the 
process  of  production  to  those  persons  only 
who  are  associated  for  this  purpose,  to  the 
exclusion  of  others  who,  if  permitted  to  act 
freely,  would  find  employment,  or  would 
accept  it  upon  less  exacting  terms.  In  both 
cases  we  have  examples  of  monopoly  in  the 
proper  sense  of  the  term. 

There  is,  no  doubt,  a  difference  between 
associated  capital  and  associated  labor  in 
respect  to  the  facilities  for  the  creation  of  a 
monopoly;  since  capital  can  more  readily 
endure  a  period  of  negotiation  or  a  total 
cessation  of  operation.  The  isolated  la- 
borer may  not  be  able  to  subsist  for  a  long 
time,  unless  he  can  find  employment ;  and  he 
must,  therefore,  find  it  at  some  price  without 
too  long  delay,  while  the  capitalist  is  able  to 

155 


THE    PEOPLE'S    GOVERNMENT 

wait.  On  the  other  hand,  the  capitalist  can- 
not thrive  without  the  active  employment  of 
his  instruments  of  production  and  the  use 
of  his  raw  material.  He  must,  if  he  would 
continue  his  operations,  come  to  terms  with 
the  laborer.  The  practical  question  is,  there- 
fore, at  what  point  can  the  agreement  be 
made?  If  either  partner  in  the  process  of 
production  can  arbitrarily  dictate  to  the 
other,  the  result  is  a  monopoly ;  and  monop- 
oly is  the  ruin  of  enterprise. 

Whatever  the  laws  relating  to  this  sub- 
ject may  be,  one  thing  is  clear:  they  must 
recognize  mutual  obligation  as  their  only 
basis,  or  they  will  eventually  prove  nuga- 
tory. No  process  of  joint-production  can 
long  be  continued  unless  the  participants 
derive  from  it  advantages  satisfactory  to 
themselves.  If  too  poorly  paid,  laborers 
will  either  quit  the  employment  or  become 
practically  useless  in  it.  If  subject  to  ex- 
actions and  incertitude  by  the  excessive  de- 

156 


LAW    AS    MUTUAL    OBLIGATION 

mands  of  their  employees,  men  of  affairs 
will  not  undertake  the  organization  of  great 
enterprises.  The  result  of  despotic  methods 
on  either  side,  no  matter  who  is  the  imme- 
diate victor,  will  inevitably  react  unfavor- 
ably upon  the  other.  The  only  path  to 
prosperity  lies  in  cooperation  on  the  part  of 
all  the  participants  in  obtaining  the  most 
favorable  conditions  for  the  enterprise,  in 
which  they  have  a  common  interest;  and  in 
a  fair  division  of  the  results  of  their  joint 
endeavors.  The  exercise  of  arbitrary  power 
on  either  side,  whether  in  the  form  of  op- 
pression or  of  violence,  or  in  an  attempt  to 
enact  ex  parte  laws,  only  retards  the  day  of 
prosperity.  The  recognition  of  mutual  ob- 
ligation without  the  law,  or  the  realization 
of  mutual  obligation  through  the  law  are 
the  only  roads  to  industrial  welfare  and  eco- 
nomic peace. 


157 


THE    PEOPLE'S    GOVERNMENT 
THE    RELATION   OF   MONOPOLY   TO   LAW 

There  may  be  not  only  monopolies  of 
power  in  the  control  of  the  elements  of  pro- 
duction, but  monopolies  resulting  from  the 
overgrowth  of  forms  of  business  in  which 
the  participants  have  become  wholly  recon- 
ciled to  one  another.  Here  the  antagonism 
is  not  between  the  joint-producers,  but  be- 
tween private  interests  and  the  public — • 
between  the  producer  and  the  consumer. 

This  is,  perhaps,  the  most  offensive  form 
of  monopoly  and  the  most  difficult  to  exter- 
minate, because  it  possesses  perfect  solidar- 
ity within  itself.  All  the  participants  are 
satisfied.  It  is  the  consumer  who  is  robbed. 

If  mutual  obligation  be  the  true  basis  of 
the  law,  such  monopolies  cannot  be  tolerated. 
It  might  easily  happen  that,  if  these  ten- 
dencies were  left  unchecked,  most  of  the 
great  interests  of  life  would  eventually  be- 
come the  domain  of  such  powerful  combina- 

158 


LAW    AS    MUTUAL    OBLIGATION 

tions.  A  union  between  them  would  create 
in  society  a  force  more  powerful  than  the 
State;  a  force  that  would  soon  control  the 
State ;  and,  in  time,  a  condition  of  feudalism 
would  exist  before  which  the  individual 
would  be  as  powerless  as  a  serf  of  the  Mid- 
dle Ages  against  the  lord  who  dwelt  in  the 
castle  at  whose  foot  he  toiled  until  his  master 
needed  him  to  fight  his  enemies. 

While  such  a  danger  is  not  to  be  dis- 
missed without  consideration,  it  would  be  a 
gross  injustice  to  assume  that  every  great 
and  successful  enterprise  has  that  character. 
It  is  easy  to  exaggerate  the  unknown;  and 
where  the  imagination  is  the  chief  factor,  it 
usually  far  exceeds  the  limits  of  reality.  In 
making  drastic  laws  against  enterprises  that 
are  large,  on  the  assumption  that  their  mag- 
nitude alone  is  their  condemnation,  there  is 
danger  of  so  intimidating  enterprise  as  to 
paralyze  its  efficiency.  Nothing  could  be 
more  futile  than  to  attempt  to  quicken  the 

159 


THE    PEOPLE'S    GOVERNMENT 

activity  of  the  unenterprising  by  an  assault 
upon  enterprise.  Men  will  not  be  made  suc- 
cessful by  the  destruction  of  those  who  have 
achieved  success. 

If  the  law  cannot  proceed  upon  the  as- 
sumption that  success  is  a  vice  and  failure 
a  virtue,  it  cannot  assume  that  class  inter- 
ests or  economic  differences  should  be  made 

i 

the  basis  of  special  legal  rights.  Such  an 
assumption  would  be  an  admission  that  so- 
ciety is  merely  a  balance  of  powers  and  not 
a  moral  organism.  It  would  abolish  the 
principle  of  mutual  obligation  as  the  basis 
of  the  law  and  substitute  in  its  place  the 
principle  of  conflict. 

In  some  of  the  relations  in  the  economic 
world,  it  may,  perhaps,  appear  plausible  to 
insist  that  the  balance  between  classes  needs 
to  be  adjusted  by  legal  counterpoise.  It  is 
sometimes  said  that,  men  being  unequal, 
equal  laws  are  of  no  benefit  to  them.  What 
they  need  is  unequal  laws ;  or,  in  other  terms, 

160 


LAW    AS    MUTUAL    OBLIGATION 

laws  of  equalization.  The  rich  should  sup- 
port the  poor;  the  strong  should  bear  the 
burdens  of  the  weak;  the  successful  should 
render  impossible  the  failures  of  the  unsuc- 
cessful. 

This  doctrine  may  serve  very  well  as  an 
exhortation  to  voluntary  private  charity, 
and  may  well  be  remembered  by  all  who  are 
in  a  position  to  alleviate  the  lot  of  those  who 
have  been  less  fortunate;  but  to  erect  this 
counsel  of  perfection  into  a  legal  enactment, 
and  to  impose  a  penalty  for  not  dividing 
one's  earnings  with  the  idle,  the  improvident, 
and  the  profligate,  is  a  perversion  of  the 
principle  of  mutual  obligation,  which  calls 
for  equal  laws  but  does  not  demand  laws  of 
equalization.  Such  compulsory  partition  of 
wealth  would  not  have  the  merit  of  personal 
charity,  and  the  motive  that  lies  back  of  the 
proposal  does  not  bear  evidence  of  personal 
sacrifice  on  the  part  of  those  who  com- 
mend it. 

12  161 


THE    PEOPLE'S    GOVERNMENT 

THE  ALLEGED   COMMUNITY  OF   PROPERTY 

There  is,  no  doubt,  a  whole  scheme  of 
social  philosophy  underlying  the  current 
demand  for  laws  of  equalization.  Its  start- 
ing-point is  a  new  theory  regarding  the 
nature  of  wealth.  The  idea  that  the  individ- 
ual creates  wealth  and  may  rjghtly  possess 
it,  it  is  asserted,  is  an  outworn  eighteenth 
century  illusion  that  should  be  dismissed  to 
the  limbo  of  inalienable  individual  rights. 
It  was,  indeed,  entertained  by  the  founders 
of  the  American  Republic,  and  has  been  a 
persistent  American  doctrine;  but  it  is  no 
longer  worthy  of  consideration.  Wealth, 
according  to  the  new  theory,  is  a  social  prod- 
uct; and,  therefore,  a  rightful  social  posses- 
sion. The  property  of  a  nation  belongs  to 
the  people  as  a  whole.  It  is  for  them  to 
express  their  will  as  to  how  it  shall  be  divided. 

Plausible  as  the  doctrine  may  seem,  it  is 
founded  upon  a  perversion  of  obvious  facts. 

162 


LAW    AS    MUTUAL    OBLIGATION 

Society  as  a  whole  never  yet  initiated, 
conducted,  or  brought  to  a  successful 
achievement  any  industrial  process  or  any 
wealth-producing  activity.  It  is  always  an 
individual,  or  a  group  of  individuals,  that 
does  these  things.  It  is,  therefore,  a  wholly 
unwarranted  assumption  to  affirm  that  the 
totality  of  wealth  rightfully  belongs  to  so- 
ciety as  a  whole.  It  belongs  to  those  who 
by  their  industry,  their  enterprise,  and  their 
skill  have  produced  it,  or  who  by  their  absti- 
nence from  consuming  it  have  kept  it  in 
existence.  The  only  exceptions  to  this  are 
the  natural  resources  of  the  national  domain, 
which  will  in  future  be  turned  into  wealth, 
in  which  the  nation,  as  such,  has  an  eminent 
right  of  property. 

The  theory  that  the  totality  of  wealth 
belongs  to  the  totality  of  the  people  has  a 
very  simple  historical  origin.  Private  prop- 
erty, in  this  conception  of  it,  is  based  only  on 
public  permission.  All  rights  and  all  public 

163 


THE    PEOPLE'S    GOVERNMENT 

powers  inhere  in  the  ruler.  When  the  ruler 
was  a  prince,  the  formula  was,  "The  will  of 
the  prince  is  law."  Now  that  the  people 
have  become  the  rulers,  the  formula  has  be- 
come, "The  will  of  the  people  is  law."  In 
both  cases,  so  long  as  authority  remains 
merely  the  "good  pleasure"  of  the  ultimate 
power  in  the  State,  the  doctrine  upon  which 

4 

it  rests  is  simply  the  old  dogma  of  absolute 
sovereignty  in  a  new  guise. 

THE     NECESSITY     OF     A     FUNDAMENTAL    LAW 

Democracy,  if  it  be  true  to  itself,  will  not 
base  its  claims  upon  such  a  weak  foundation. 
Its  true  basic  principle  is  the  mutuality  of 
obligation.  There  should  be  no  absolute 
power  in  the  State  as  respects  life,  liberty, 
and  property.  Whatever  sovereignty  the 
State  may  rightly  claim  to  possess  is  based 
upon  the  inherent  rights  of  individuals ;  and 
it  cannot,  therefore,  be  logically  extended  to 

164 


LAW    AS    MUTUAL    OBLIGATION 

such  a  point  as  to  permit  the  violation  of 
those  rights  by  any  power  whatever. 

Accordingly,  the  law  must  recognize  its 
own  limitations.  This  it  does  by  the  formu- 
lation of  a  fundamental  law,  which  has  for 
its  object  not  only  the  creation  and  coordi- 
nation of  the  powers  of  government,  but  the 
guarantee  of  the  inherent  rights  upon  which 
a  rightly  constituted  State  must  be  founded. 
Whatever  functions  it  may  incidentally  as- 
sume for  the  welfare  of  the  community,  the 
basic  principle  of  the  State  is  the  protection 
of  the  rights  of  its  citizens.  We  say  its 
"citizens,"  for  the  State,  as  here  conceived, 
does  not  deal  with  "subjects,"  unless  the 
word  is  used  in  such  a  sense  as  to  deprive  it 
of  its  original  meaning. 

Of  paramount  interest  to  the  citizen, 
therefore,  is  the  fundamental  law;  for  in  it 
is  found  the  sole  guarantee  of  those  indi- 
vidual rights  which  the  citizen  must  con- 
serve. Such  a  law  is  not  an  infringement  of 

165 


THE    PEOPLE'S    GOVERNMENT 

liberty ;  it  is,  on  the  contrary,  the  only  means 
of  organizing  liberty.  Its  purpose  is  to  se- 
cure to  the  citizen  immunity  from  the  des- 
potism of  the  law-maker,  whoever  the  law- 
maker may  be,  and  from  those  interests  and 
designs  which  inspire  despotic  laws.  It  con- 
sists in  a  division  and  limitation  of  public 
powers,  with  such  a  balance  gf  legislative, 
judicial,  and  executive  functions  that  it  is 
impossible  for  any  one  of  them  to  encroach 
upon  the  inherent  rights  of  the  citizen.  A 
fundamental  law  is,  in  effect,  a  reservation, 
and  at  the  same  time  a  renunciation,  on  the 
part  of  the  citizens  who  constitute  the  State. 
As  a  reservation,  it  forbids  the  invasion  of 
the  personal  rights  of  the  individual  by  any 
or  all  of  the  public  powers ;  and,  as  a  renun- 
ciation, it  is  a  voluntary  ordinance  of  self- 
denial,  on  the  part  of  the  citizen,  by  which 
he  pledges  himself  not  to  invade,  or  permit 
others  to  invade,  the  domain  of  individual 
rights.  It  is,  in  brief,  a  compact  made  by 

166 


LAW    AS    MUTUAL    OBLIGATION 

the  people,  in  which  they  surrender  their 
private  wills  to  the  rule  of  law. 

THE   NATURE   OF   A   FUNDAMENTAL   LAW 

Such  a  compact,  serving  as  an  organic 
law,  does  not  extend  to  the  various  details 
concerning  which  public  opinion  may  vary. 
It  draws  a  sharp  line  of  distinction  between 
two  different  fields  of  legislation.  In  the 
first  are  included  those  matters  upon  which 
all  good  citizens  can  agree  without  debate, 
such  as  the  inherent  sanctity  of  life ;  the  free 
play  of  the  individual  faculties,  so  long  as 
their  action  is  not  injurious  to  others;  and 
the  possession  and  enjoyment  of  the  results 
of  industry,  enterprise,  economy,  and  fore- 
sight. Within  this  field  the  law  should  be 
definitive.  The  disturbance  of  these  rights 
should  be  prohibited.  Their  perpetuity 
should  be  guaranteed.  This  should  be  the 
law  for  the  legislator.  It  should  also  be  the 

167 


THE    PEOPLE'S    GOVERNMENT 

law  for  the  judge  and  for  the  executive. 
Their  first  duty  is  to  protect  these  rights  and 
to  defend  these  guarantees.  In  the  second 
field  there  must  be  freedom  of  legislation. 
Here  public  opinion,  in  all  its  mutability, 
may  justly  rule.  Here  the  "will  of  the  peo- 
ple" may  assert  itself  and  have  free  play, 
restrained  only  by  the  fundamental  law. 

Regarded  broadly,  it  may  be  said,  that 
the  first  field  serves  as  an  intrenchment  of 
rights  intended  to  be  kept  inviolable,  while 
the  second  is  the  field  of  experiment  in  social 
expediency. 

It  is  evident  that  there  is  an  impassable 
line  of  demarcation  between  these  two  do- 
mains. It  would  be  ridiculous  to  surcharge 
the  fundamental  law  with  all  kinds  of  de- 
tailed provisions  of  a  nature  to  be  frequently 
reconsidered  and  modified  with  every  social 
transformation.  On  the  other  hand,  to 
break  down  the  barriers  of  the  fundamental 
law  and  sweep  away  all  its  guarantees  would 

168 


LAW    AS    MUTUAL    OBLIGATION 

open  the  road  to  many  kinds  of  absolutism. 
In  every  class  conflict  the  whole  structure 
of  government  would  then  be  subject  to 
change,  and  it  is  quite  impossible  to  foresee 
what  the  result  of  the  change  might  be. 
That  would  depend  upon  who  chanced  to 
be  the  victor  in  the  struggle.  If  all  legis- 
lation were  left  to  the  prevailing  passions 
of  the  moment,  "Votre  Majorite"  would 
soon,  no  doubt,  become  "Votre  Majeste" 
The  door  to  demagogism  and  to  revolution 
would  be  thrown  wide  open. 

THE  CONSTITUTION  AS  A  GUARANTEE 
OF  RIGHTS 

It  is  one  of  the  fortunate  circumstances 
in  the  historical  development  of  our  coun- 
try, that  in  framing  our  Federal  Constitu- 
tion this  danger  was  foreseen.  Not  only 
were  guarantees  that  mutual  obligation 
should  be  respected  written  into  that  docu- 
ment, but  it  was  made  legally  impossible  to 

169 


THE    PEOPLE'S    GOVERNMENT 

break  down  the  distinction  between  laws 
permitted  and  laws  prohibited.  The  Con- 
stitution is,  and  was  designed  to  be,  as  no 
other  constitutions  ever  have  been,  a  law  for 
legislators.  It  is  not  only  a  frame  of  gov- 
ernment, it  is  a  Bill  of  Rights ;  and  it  is  not 
only  a  bill  of  inviolable  rights,  it  is  a  Bill 
of  Rights  placed  under  the  protection  of 
the  judiciary.  Individual  rights — "natu- 
ral" rights,  if  one  chooses  to  call  them  so — 
are  not  only  recognized  in  the  Constitution; 
the  Constitution  is  their  organized  defense. 
In  this,  as  has  been  already  intimated, 
the  Constitution  of  the  United  States  and 
some  of  the  State  constitutions  stand  alone. 
They  have  been  much  imitated,  but  their 
unique,  distinctive,  and  original  feature  has 
not  been  adopted  in  other  countries.  The 
reason  is  not  far  to  seek:  the  founders  of 
our  constitutional  system  were  the  first,  and 
they  have  thus  far  been  the  only  people  who 
were  determined  to  put  an  end  to  absolu- 

170 


LAW    AS    MUTUAL    OBLIGATION 

tism  in  every  form,  voluntarily  limiting  their 
own  sovereignty,  in  the  sense  of  placing 
themselves  and  all  their  organs  of  govern- 
ment under  the  dominion  of  law.  In  doing 
this,  thirteen  independent  communities  re- 
nounced for  all  time  their  own  arbitrary  will, 
in  order  to  produce  an  accord  based  upon 
principles  of  justice.  Not  only  so,  but  they 
granted  the  same  privilege  to  other  com- 
munities formed  upon  territories  which,  ac- 
cording to  the  legal  conception  of  the  time, 
they  might  have  ruled  forever  as  arbitrarily 
as  any  absolute  sovereign  ever  ruled  a  con- 
quered colony. 

THE      OPPOSITION      TO      FUNDAMENTAL      LAW 

It  cannot  with  historical  truth  be  said 
that  this  movement  was  unopposed,  or  that 
it  was  an  act  of  pure  and  disinterested  gen- 
erosity. Nor,  on  the  other  hand,  can  it  be 
said  that  the  motives  which  actuated  it  were 

171 


THE    PEOPLE'S    GOVERNMENT 

merely  private  and  wholly  selfish.  Not  as 
much,  however,  can  be  said  in  favor  of  those 
who  in  the  critical  moment  of  decision  op- 
posed this  compact.  There  was,  in  truth, 
at  the  time  when  the  Federal  Constitution 
was  adopted,  a  large  amount  of  indifference, 
arising  from  unreflecting  satisfaction  with 
a  condition  of  independence  already  gained 
and  from  a  failure  to  grasp  intelligently  the 
momentous  significance  of  the  agreement. 
This,  however,  is  a  negligible  quantity,  for 
the  reason  that  it  represented  no  quality  of 
real  public  opinion.  There  always  have 
been,  and  it  is  possible  that  there  may  al- 
ways be,  persons  who  pay  little  attention  to 
the  legal  security  of  their  personal  rights, 
so  long  as  they  consider  that  they  are  not 
definitely  challenged.  All  the  more  credit, 
therefore,  to  those  who  apprehend  a  danger, 
and  upon  a  timely  occasion  endeavor  to 
avert  it. 

But  the  fundamental  law  was,  it  must  be 
172 


LAW    AS    MUTUAL    OBLIGATION 

conceded,  actively  opposed,  not  indeed  by  a 
majority,  or  by  any  considerable  body  of 
opponents.  It  is  interesting,  therefore,  to 
inquire  what  their  principles  and  motives 
were. 

There  was,  in  our  early  history  as  a  coun- 
try, and  in  our  public  life  there  has  since 
frequently  appeared,  a  group  of  persons 
who,  as  debtors,  repudiators,  and  advocates 
of  fiat  money,  were  unfavorable  to  the  rights 
of  property  and  to  the  principle  of  mutual 
obligation  as  a  basis  of  law.  It  is  not  sur- 
prising, therefore,  that  these  persons,  actu- 
ated by  their  personal  interests,  or  by  the 
hope  of  constituting  themselves  leaders  by 
appealing  to  such  interests,  should  have  op- 
posed the  guarantees  of  inherent  rights  in 
the  organic  law;  and  it  is  to  be  expected 
that  this  opposition  will  not  end,  so  long  as 
the  motives  for  sustaining  it  endure. 

This  was  clearly  seen,  and  the  danger  it 
occasions  was  admirably  stated  by  James 

173 


THE    PEOPLE'S    GOVERNMENT 

Madison,  when  engaged  in  defending  the 
Constitution  and  urging  its  adoption.  "The 
diversity  in  the  faculties  of  men,  from  which 
the  rights  of  property  originate,"  he  says, 
"is  an  insuperable  obstacle  to  a  uniformity 
of  interests.  The  protection  of  these  facul- 
ties is  the  first  object  of  government.  From 
the  protection  of  unequal  faculties  of  ac- 
quiring property,  the  possession  of  different 
degrees  and  kinds  of  property  results;  and 
from  the  influence  of  these  on  the  sentiments 
and  views  of  the  respective  proprietors,  en- 
sues a  division  of  society  into  different  in- 
terests and  parties.  .  .  .  The  regulation  of 
these  various  and  interfering  interests  forms 
the  principal  task  of  modern  legislation,  and 
involves  the  spirit  of  party  and  faction  in 
the  necessary  and  ordinary  operations  of 
the  government." 

There  are,  then,  interests  to  be  defended, 
because  there  are  interests  likely  to  be  at- 
tacked, If  these  interests  are  grounded  in 

1 74 


LAW    AS    MUTUAL    OBLIGATION 

inherent  rights,  the  principle  of  mutual 
obligation  fully  justifies  this  defense;  but 
at  the  same  time  it  condemns  the  disposition 
to  attack  them.  It  is  evident,  therefore, 
that  a  constitution  that  defends  them  from 
depredation  is  a  necessary  safeguard  of  lib- 
erty, by  establishing  equality  before  the  law. 
It  is  not  the  origin  of  private  rights,  which 
exist  before  it.  It  merely  declares  and 
guarantees  them.  Its  voice  is  not  for  one 
class  or  another.  It  knows  nothing  of  dif- 
ferent interests,  and  does  not  stand  for 
them.  It  merely  says  that  no  preponderant 
power  in  the  State  shall  destroy  the  rights 
upon  which  the  conception  of  the  State  is 
founded  and  which  it  exists  to  protect.  It 
is  the  friend  and  the  defender  of  every 
honest  man. 

Will  it  be  said  that,  in  a  free  democracy, 
no  rights  will  be  in  danger,  and  that  the 
majority  will  always  respect  them?  Then 
why  not  make  it  the  law  that  they  must  be 

175 


THE    PEOPLE'S    GOVERNMENT 

respected?  And  if  it  be  the  intention  to 
respect  them,  why  should  anyone  object  to 
such  a  fundamental  guarantee? 

Is  it  true  that  majorities,  and  the  law- 
making  bodies  which  represent  majorities, 
are  always  just?  Have  legislative  bodies, 
even  in  republics,  always  set  their  faces 
sternly  against  plunder,  extortion,  and  re- 
pudiation? "Wherever  the  real  power  of 
government  lies,"  Madison  declared,  "there 
is  danger  of  oppression."  There  is  always 
reason  to  fear  irresponsible  power,  simply 
because  it  is  power.  The  design  of  consti- 
tutional government  is  so  to  restrain  power 
that  it  shall  be  always  under  the  dominion 
of  the  law. 

"In  our  government,"  as  Madison  points 
out,  "the  real  power  lies  in  the  majority  of 
the  community,  and  the  invasion  of  private 
rights  is  chiefly  to  be  apprehended  not  from 
acts  of  government  contrary  to  the  sense 
of  the  constituents,  but  from  acts  in  which 

176 


LAW    AS    MUTUAL    OBLIGATION 

the  government  is  the  mere  instrument  of 
the  major  number  of  constituents.  .  .  . 
Where  there  is  an  interest  and  a  power  to 
do  wrong,  wrong  will  generally  be  done,  and 
not  the  less  readily  by  a  powerful  and  in- 
terested party  than  by  a  powerful  and  inter- 
ested prince." 

What,  then,  should  be  the  attitude  of  the 
citizen?  That  is  the  all-absorbing  question, 
for  it  is  upon  him  that  rests  the  grave  re- 
sponsibility of  deciding  whether  or  not  con- 
stitutional government  shall  survive. 


13 


THE   CITIZEN  AS  A  LAW-MAKER 


THE    CITIZEN    AS    A    LAW-MAKER 

If  the  United  States  has  ever  possessed 
a  great  citizen,  it  was  Abraham  Lincoln; 
and  if  ever  a  citizen  felt  the  restraints  of 
the  Federal  Constitution,  it  was  he.  Be- 
lieving slavery  to  be  a  heinous  crime,  he 
perceived  its  supporters  taking  refuge  be- 
hind the  provisions  of  the  Constitution,  not 
only  for  the  maintenance  of  that  institution 
in  the  States  where  it  had  originally  ex- 
isted, but  for  its  extension  into  the  free 
territories  of  the  West. 

The  Dred  Scott  decision,  by  which  in  1857 
the  Supreme  Court  of  the  United  States 
appeared  to  have  established  forever  the 
right  of  a  slaveholder  to  reclaim  possession 
of  a  liberated  slave  wherever  the  laws  of 

181 


THE    PEOPLE'S    GOVERNMENT 

the  United  States  extended,  was  based  upon 
the  following  interpretation  of  the  Consti- 
tution : 

If  the  Constitution  recognizes  the 
right  of  property  of  the  master  in  a 
slave,  and  makes  no  distinction  between 
that  description  of  property  and  any 
other  property  owned  by  a  citizen,  no 
tribunal,  acting  under  the  authority  of 
the  United  States,  whether  it  be  legis- 
lative, executive,  or  judicial,  has  a  right 
to  draw  such  a  distinction,  or  deny  to 
it  the  benefit  of  the  provisions  and 
guarantees  which  have  been  provided 
for  the  protection  of  private  property 
against  the  encroachments  of  the  gov- 
ernment. 

Since  the  existence  of  slavery  as  a  fact 
was  recognized  in  the  Constitution,  the 
Court  drew  the  inference  that  the  act  of 
Congress  known  as  the  "Missouri  Compro- 
mise" was  not  constitutional,  and  was,  there- 
fore, null  and  void;  and  that  the  former 

182 


THE    CITIZEN    AS    A    LAW-MAKER 

slave,  Dred  Scott,  was  not  made  free  by  his 
presence  in  territory  where  Congress  had 
prohibited  slavery,  and  would  not  be  even 
though  taken  there  by  his  owner  with  the 
intention  of  permanent  residence. 

This  denial  of  the  right  of  Congress  to 
exempt  any  portion  of  the  territories  of  the 
United  States  where  slavery  did  not  exist 
from  the  recognition  of  property  in  human 
life,  was  to  Lincoln  intolerable.  Against 
it  his  reason  and  his  conscience  were  in  re- 
volt. So  strongly  was  he  moved  by  what 
he  esteemed  a  monstrous  injustice,  that  he 
might  easily  have  felt  constrained  to  con- 
demn the  Constitution  as  responsible  for  the 
wrong;  but  this  seems  never  to  have  oc- 
curred to  him.  The  decision  itself  he  de- 
nounced on  what  he  believed  to  be  legal  as 
well  as  moral  grounds,  but  he  proposed  no 
amendment  of  the  Constitution.  With  calm 
and  unshaken  faith  in  the  essential  sound- 
ness of  the  fundamental  law,  he  awaited  the 

183 


THE    PEOPLE'S    GOVERNMENT 

day  when  the  right  would  triumph,  not 
through  a  modification  of  the  Constitution 
— which  was  not  responsible  for  the  exist- 
ence of  slavery — or  by  disputing  the  inde- 
pendence of  the  judiciary — which  is  the 
keystone  of  the  entire  constitutional  system 
— but  by  the  force  of  public  opinion  upon  a 
great  moral  question  which  would,  he  be- 
lieved, in  the  end  result  in  a  reversal  of  the 
decision  so  far  as  the  extension  of  slavery 
into  free  territory  was  concerned.  With  the 
clearness  of  vision  and  the  patience  of  a 
great  statesman,  he  saw  that  the  fault  was 
not  in  the  Constitution,  and  not  in  the  free- 
dom of  the  judiciary,  but  in  treating  a  hu- 
man being  as  property  in  territories  where 
slavery  as  an  institution  had  been  prohibited 
by  law.  In  his  debate  with  Stephen  A. 
Douglas,  he  declared :  "We  oppose  the  Dred 
Scott  decision  in  a  certain  way.  .  .  .  We 
do  not  propose  that  when  Dred  Scott  has 
been  decided  to  be  a  slave  by  the  court,  we 


THE    CITIZEN    AS    A    LAW-MAKER 

as  a  mob,  will  decide  him  to  be  free;  .  .  . 
but  we  nevertheless  do  oppose  that  decision 
as  a  political  rule  which  shall  be  binding  on 
the  voter  to  vote  for  nobody  who  thinks  it 
wrong.  .  .  .  We  propose  so  resisting  it  as 
to  have  it  reversed  if  we  can,  and  a  new 
judicial  rule  established  upon  this  subject." 

In  brief,  Lincoln  regarded  the  decision 
as  part  of  an  organized  conspiracy  to  ex- 
tend slavery  into  free  territory.  When 
charged  with  resisting  the  decision  of  the 
Supreme  Court  by  which  Dred  Scott  was 
decided  to  be  a  slave,  and  thereby  attempt- 
ing to  rob  his  master  of  his  property,  Lin- 
coln replied:  "All  that  I  am  doing  is  refus- 
ing to  obey  it  as  a  political  rule.  ...  If  I 
were  in  Congress  and  a  vote  should  come  up 
on  a  question  whether  slavery  should  be 
prohibited  in  a  new  territory,  in  spite  of  the 
Dred  Scott  decision,  I  would  vote  that  it 
should." 

There  is  in  Lincoln's  speeches,  made  un- 
J85 


THE    PEOPLE'S    GOVERNMENT 

der  the  most  trying  circumstances,  no  denial 
of  the  binding  nature  of  a  court  decision  as 
regards  the  particular  case  to  which  the  de- 
cision applies.  What  he  objected  to  was 
neither  the  constitutional  prerogative  of  the 
court  to  declare  an  act  of  Congress  uncon- 
stitutional nor  the  immediate  effect  of  the 
particular  decision,  but  the  right  of  the 
court  to  fix  for  all  time  the  policy  of  the 
government  on  the  question  of  slavery.  On 
this  point  he  expressly  states:  "Nor  is  there 
in  this  view  any  assault  upon  the  court  or 
the  judges.  It  is  a  duty,  from  which  they 
may  not  shrink,  to  decide  cases  properly 
brought  before  them;  and  it  is  no  fault  of 
theirs  if  others  seek  to  turn  their  decisions 
to  political  purposes." 

RESPECT     FOR     THE     CONSTITUTION     AS     THE 
GUARANTOR    OF    LIBERTY 

Strong  as  the  temptation  was,  in  the  great 
moral  crisis  which  an  ex  parte  interpretation 

186 


THE    CITIZEN    AS    A    LAW-MAKER 

of  the  Constitution  had  forced  upon  the 
country,  to  criticize  the  provisions  of  the 
organic  law  itself,  no  note  of  censure  and 
no  proposal  of  change  came  from  the  states- 
man who  most  lamented  the  construction 
put  upon  it.  No  one  can  doubt  that,  as  a 
man  of  the  people,  Lincoln  had  supreme 
confidence  in  the  wisdom  and  virtue  of  his 
fellow-citizens ;  yet  he  fully  realized  the  value 
of  the  restraints  imposed  by  the  fundamental 
law,  and  there  is  in  his  voluminous  utter- 
ances no  appeal  to  their  undirected  will  to 
correct  by  an  extra-judicial  act  the  wrong 
which  he  sought  to  remedy.  In  his  first  in- 
augural as  President  of  the  United  States, 
delivered  at  a  moment  when  the  passions 
and  interests  of  the  Nation  were  stirred  as 
they  had  never  been  before,  he  expressed  in 
a  single  sentence  his  confidence  in  the  de- 
liberate and  balanced  judgment  of  the  peo- 
ple, but  at  the  same  time  his  conviction  of 
the  necessity  of  constitutional  restraints. 

187 


THE    PEOPLE'S    GOVERNMENT 

"A  majority,"  he  says,  "held  in  restraint  by 
constitutional  checks  and  limitations,  and 
always  changing  easily  with  deliberate 
changes  of  popular  opinion  and  sentiment, 
is  the  only  true  sovereign  of  the  people." 
"Whoever  rejects  it,"  he  adds,  "does  of  ne- 
cessity fly  to  anarchy  or  despotism." 

It  is  well  to  ponder  these  weighty  words. 
The  majority,  under  our  system,  must  ulti- 
mately rule ;  but,  in  Lincoln's  view,  it  should 
be  a  majority  acting  under  two  conditions: 
(1)  the  restraint  of  constitutional  princi- 
ples, which  set  definite  limits  to  the  will  even 
of  the  majority;  and  (2)  it  must  not  be  a 
fixed  majority,  acting  solely  in  its  own 
interest,  but  one  that  changes  easily  with 
deliberate  changes  of  popular  opinion. 
Constitutional  limitations  and  deliberate  con- 
sideration— these  are  the  two  landmarks 
which  indicate  the  safe  channel  for  the  on- 
flow of  progressive  action  by  the  people. 
The  alternatives  are,  as  Lincoln  said,  anar- 

188 


THE    CITIZEN    AS    A   LAW-MAKER 

chy  on  the  one  hand,  and  despotism  on  the 
other. 

As  a  law-maker — and  every  citizen  is  a 
law-maker — a  recognition  of  these  condi- 
tions is  the  first  duty  of  the  citizen.  If  the 
laws  are  to  be  respected,  it  is  necessary  that 
they  should  contain  nothing  arbitrary,  noth- 
ing which  springs  from  the  mere  unreason- 
ing volition  of  the  law-maker.  Every  en- 
actment should  be  based  upon  the  principle 
of  mutual  obligation. 

It  is  here  that  the  substantial  value  of  a 
fundamental  law  becomes  apparent,  for  it 
contains  the  only  guarantee  that  unequal 
legislation  will  not  be  enacted.  It  is  the 
effectual  barrier  to  the  triumph  of  mere 
class  and  sectional  designs.  It  is  not  un- 
natural, therefore,  that  these  should  en- 
deavor to  break  it  down.  All  attempts  to 
do  so  should  be  regarded  with  suspicion,  for 
an  assault  upon  it  is  an  attempt  to  destroy 
the  compact  upon  which  the  existing  order 

189 


THE    PEOPLE'S    GOVERNMENT 

is  based.  The  anarchist  who  wishes  to  de- 
stroy the  system  of  legal  right  and  the 
despot  who  wishes  to  impose  his  arbitrary 
will  are  powerless  so  long  as  this  basic  law 
exists.  It  is  the  bulwark  of  human  rights 
and  of  personal  liberty,  erected  against  ab- 
solutism in  every  form. 

So  evident  is  this  that  the  enemies  of  con- 
stitutional government  rarely  oppose  it  by 
direct  attack.  Their  method  is  rather  to 
undermine  it  by  insidious  changes.  These 
they  intend  to  make  progressive  rather  than 
immediate,  for  they  may  thus  the  more 
easily  develop  and  mature  their  ultimate 
designs.  Thus,  for  example,  previous  to 
1848,  Louis  Napoleon  was  the  most  ad- 
vanced advocate  of  democratic  ideas  in 
France.  His  most  important  writings  were 
on  the  extinction  of  pauperism  and  the  neg- 
lected rights  of  the  working  classes.  His 
principal  theme  was  "authoritative  democ- 
racy," to  be  organized  in  the  interest  of  the 

190 


THE    CITIZEN    AS    A   LAW-MAKER 

oppressed.  On  December  tenth,  of  that 
year,  as  the  protagonist  of  the  people,  he 
was  elected  President  of  the  Republic.  His 
first  request  was,  that  he  be  intrusted  to  re- 
model the  constitution  of  France,  in  order 
to  embody  in  it  his  conception  of  authorita- 
tive democracy.  The  answer  of  the  plebis- 
cite that  followed  was  7,439,216  yeas,  and 
640,737  noes.  Four  years  later,  when  these 
changes  had  been  made,  the  people  of  France 
were  invited  to  vote  on  the  question  of  re- 
establishing the  imperial  office,  with  Louis 
Napoleon  as  sole  candidate.  In  response, 
7,824,189  Frenchmen  voted  "Yes";  and 
only  253,145  ventured  to  vote  "No."  Such 
was  the  result  of  substituting  personality 
for  principles — the  subordination  of  a  nation 
to  one  man. 

THE     SURCHARGING    OF     FUNDAMENTAL   LAW 

There  is  a  recurrent  disposition  not  only 
to  alter  the  fundamental  law,  but  to  over- 

191 


THE    PEOPLE'S    GOVERNMENT 

load  it  with  numerous  irrelevant  details, 
thus  destroying  its  permanent  character  and 
transforming  it  into  a  general  code  of  statu- 
tory legislation.  This  process,  from  which 
our  Federal  Constitution  has  thus  far  been 
happily  spared,  has  been  carried  on  to  an 
alarming  extent  in  many  of  the  state  con- 
stitutions; which  have,  therefore,  become 
mere  temporary — and  to  a  great  extent 
purely  experimental — digests  of  what  for 
the  moment  is  fancied  to  be  ideal  legisla- 
tion. 

It  is  apparent  that  such  attempts  to  em- 
body ultimate  ideals,  especially  when  based 
upon  extemporaneous  theories  and  a  large 
infusion  of  adventurous  initiative,  miss  en- 
tirely the  purpose  of  a  fundamental  law— 
which  is  not  to  codify  all  the  rights  and 
duties  of  the  community,  but  to  define  and 
limit  the  public  powers,  and  to  mark  out  the 
boundaries  beyond  which  the  process  of  law- 
making  may  not  justly  go,  thus  furnishing 

192 


THE    CITIZEN    AS    A   LAW-MAKER 

to  the  citizen  a  substantial  guarantee  of  his 
inherent  rights  and  liberties. 

If  we  take  up  our  Federal  Constitution 
and  carefully  analyze  its  contents,  we  realize 
how  admirably  the  founders  of  the  Nation 
adhered  to  the  idea  of  embodying  in  it  only 
purely  constituent  formulas. 

The  purpose  is  stated  in  the  Preamble: 

We  the  people  of  the  United  States, 
in  order  to  form  a  more  perfect  union, 
establish  justice,  insure  domestic  tran- 
quility,  provide  for  the  common  defense, 
promote  the  general  welfare,  and  secure 
the  blessings  of  liberty  to  ourselves  and 
our  posterity,  do  ordain  and  establish 
this  CONSTITUTION  for  the  United 
States  of  America. 

It  is  interesting  to  note  that  nothing  in 
the  entire  document  oversteps  this  general 
purpose,  set  forth  with  such  dignity  and 
simplicity.  First,  comes  the  frame  of  gov- 
ernment, based  upon  the  separation  and  co- 
14  193 


THE    PEOPLE'S    GOVERNMENT 

ordination  of  the  public  powers,  thus  pro- 
viding the  organism  by  which  the  ends 
enumerated  in  the  Preamble  are  to  be  at- 
tained. Distinct  provision  is  made  for  con- 
fining each  branch  of  the  government  to  its 
own  assigned  sphere,  thus  preventing  a 
usurpation  of  power  by  any  one  of  them 
without  a  violation  of  the  \aw.  Limited 
terms  of  office,  of  comparatively  short  dura- 
tion, are  ordained,  and  the  Chief  Executive 
and  other  civil  officers  are  rendered  liable  to 
impeachment  in  case  they  overstep  the 
bounds. 

Interspersed  with  the  powers  accorded  to 
public  officers  are  reservations  of  personal 
rights  which  set  a  limit  to  public  authority 
in  the  interest  of  personal  liberty,  such  as 
the  prohibition  against  preventing  migration 
from  State  to  State,  suspending  the  writ  of 
habeas  corpus,  the  passing  of  bills  of  at- 
tainder or  ex  post  facto  laws,  the  unequal 
imposition  of  direct  taxes  (recently  changed 

194 


THE    CITIZEN    AS    A    LAW-MAKER 

by  amendment) ,  the  levying  of  import  taxes 
by  the  States,  etc. 

Although  the  reaction  from  absolutism 
and  the  distrust  of  arbitrary  power  are 
clearly  marked  in  the  Constitution  as  it  came 
forth  from  the  hands  of  its  framers,  the  dis- 
tinct reservation  to  the  States  and  to  the 
people  of  all  powers  not  explicitly  accorded 
to  the  Federal  Government  was  at  that  time 
deemed  by  many  an  insufficient  safeguard 
of  local  and  personal  liberty,  and  further 
guarantees  were  demanded.  In  the  first  ten 
amendments,  therefore — practically  coeval 
with  the  Constitution  itself — we  find  a  de- 
tailed Bill  of  Rights  in  which  certain  liberties 
of  the  people  are  expressly  guaranteed. 

THE  EXTENSION  OF  GUARANTEES  TO  EMANCI- 
PATED SLAVES 

Until  a  very  recent  period  great  value  was 
placed  upon  these  guarantees,  and  the  Con- 
stitution constantly  grew  in  public  esteem. 

195 


THE    PEOPLE'S    GOVERNMENT 

The  whole  drift  of  popular  sentiment  was 
in  the  direction  of  augmenting  and  strength- 
ening them.  After  the  first  twelve  amend- 
ments, no  further  alteration  or  addition 
was,  however,  considered  necessary  until  the 
results  of  the  Civil  War  in  1865  led  to 
the  thirteenth  amendment,  declaring  that 
"neither  slavery  nor  involuntary  servitude, 
except  as  a  punishment  for  crime  whereof 
the  party  shall  have  been  duly  convicted, 
shall  exist  within  the  United  States,  or  any 
place  subject  to  their  jurisdiction."  Three 
years  later,  as  a  necessary  step  in  the  recon- 
struction of  the  States  that  had  been  in  re- 
bellion, the  fourteenth  amendment  was 
passed,  by  which  it  is  declared,  that  "All 
persons  born  or  naturalized  in  the  United 
States,  and  subject  to  the  jurisdiction  there- 
of, are  citizens  of  the  United  States  and  of 
the  State  wherein  they  reside." 

The  immediate  purpose  of  this  new  guar- 
antee was  to  secure  to  the  enfranchised  slaves 

196 


THE    CITIZEN    AS    A    LAW-MAKER 

the  constitutional  right  of  citizenship,  but 
this  would  have  been  illusory  without  secur- 
ing to  them  immunity  from  the  invasion  of 
their  civil  rights  by  the  enactment  of  dis- 
criminating local  laws.  Accordingly,  a 
clause  was  added,  in  which  it  is  declared,  that 
"no  State  shall  make  or  enforce  any  law 
which  shall  abridge  the  privileges  or  im- 
munities of  citizens  of  the  United  States; 
nor  shall  any  State  deprive  any  person  of 
life,  liberty,  or  property  without  due  process 
of  law;  nor  deny  to  any  person  within  its 
jurisdiction  -the  equal  protection  of  the 
laws." 

Thus,  at  last,  with  the  abolition  of  slavery 
—an  institution  to  which  the  spirit  of  the 
Constitution  had  always  been  opposed — all 
persons  born  or  naturalized  in  the  United 
States  were  declared  to  be  citizens,  equal 
before  the  law,  and  afforded  the  benefit  of 
equal  guarantees  of  life,  liberty,  and  prop- 
erty. 

197 


THE    PEOPLE'S    GOVERNMENT 

THE  EFFECT  OF  CONSTITUTIONAL  GUARANTEES 

In  thus  making  the  principle  of  universal 
mutual  obligation  the  formal  basis  of  the 
law,  by  prohibiting  unequal  legislation,  the 
Federal  Constitution,  so  long  as  the  funda- 
mental law  remains  unaltered  and  is  fairly 
interpreted,  places  the  citizen  jn  a  position 
of  security  from  the  arbitrary  action  of  the 
State,  and  also  from  that  of  class  interests 
through  control  of  the  State.  It  is  a  herit- 
age with  which  the  citizen  may  well  be  con- 
tent, but  it  is  one  which  he  must  always 
defend ;  for  the  forces  which  have  in  the  past 
opposed  and  hindered  its  creation  will  prob- 
ably never  cease  to  plan  its  destruction. 

Within  the  fixed  limits  of  the  basic  com- 
pact, public  opinion  has  free  scope;  and 
public  opinion  is  a  force  which  will  never 
cease  to  act.  There  is,  therefore,  in  the  na- 
ture of  the  constitutional  system  of  govern- 
ment nothing  to  obstruct  indefinite  progress 

198 


THE    CITIZEN    AS    A    LAW-MAKER 

toward  the  highest  ideals  of  the  community, 
whenever  these  become  sufficiently  clear  and 
accepted  by  a  sufficient  number  of  citizens 
to  influence  public  opinion  and  cause  it  to 
be  effectual.  What  the  constitutional  sys- 
tem does  is  not  to  obstruct  progress,  but 
simply  to  provide  a  safe  and  well-defined 
channel  through  which  progressive  social 
ideas  may  freely  flow. 

It  is,  of  course,  conceivable  that,  by  writ- 
ing into  the  basic  law  itself  ex  parte  restric- 
tions upon  personal  liberty  or  exactions  in- 
spired by  private  interests  or  misconceptions 
of  the  public  good,  the  constitutional  system 
might  be  made  the  instrument  of  the  grossest 
tyrannies.  It  is,  therefore,  of  the  highest 
importance  that  the  citizen,  in  his  capacity 
of  law-maker,  should  consider  it  his  first 
duty  to  guard  against  such  alterations  of  the 
fundamental  law.  While  the  system  of  con- 
stitutional guarantees  continues  to  exist,  it 
will  be  only  through  the  perversion  of  it  that 

199 


THE    PEOPLE'S    GOVERNMENT 

individual  rights  and  liberties  can  be  seri- 
ously affected;  but  it  must  not  be  forgotten 
that  the  perversion  of  it  is  always  possible. 
It  is,  therefore,  of  supreme  importance  to 
watch  over  and  preserve  inviolate  that  guar- 
antee of  guarantees,  deliberation  in  the 
process  of  amendment.  "The  Congress," 
runs  the  amending  clause,  "whenever  two- 
thirds  of  both  Houses  shall  deem  it  neces- 
sary, shall  propose  amendments  to  this  Con- 
stitution, or,  on  the  application  of  the  Leg- 
islatures of  two-thirds  of  the  several  States, 
shall  call  a  convention  for  proposing  amend- 
ments"; but  these,  when  accepted,  must  be 
ratified  by  the  Legislatures  of  three-fourths 
of  the  States,  or  by  conventions  of  three- 
fourths  of  them  called  for  this  purpose. 

ATTACKS    UPON    FUNDAMENTAL   LAW 

From  the  moment  when  the  Federal  Con- 
stitution was  framed  until  the  present  time, 
200 


THE    CITIZEN    AS    A    LAW-MAKER 

there  have  been  persons  who  have  either 
failed  to  distinguish  between  fundamental 
law  and  current  legislation  or  have  opposed 
the  distinction.  For  them,  the  only  govern- 
ing authority  is  the  unqualified  will  of  the 
majority;  and  they  are,  therefore,  opposed 
to  any  guarantees  against  the  operation  of 
that  will. 

The  defects  of  this  theory  of  government 
are  obvious.  There  is  no  ground  of  assur- 
ance that,  upon  every  question,  the  will  of 
the  majority  will  respect  the  inherent  rights 
of  the  minority;  and  a  majority  of  votes  is 
frequently  only  an  apparent  and  not  a  real 
expression  of  the  deliberate  will  of  the  com- 
munity. Every  attempt,  therefore,  to  abol- 
ish or  weaken  the  guarantees  afforded  by 
the  fundamental  law  must  be  regarded  with 
suspicion.  The  burden  of  proof  plainly 
rests  upon  the  person  who  proposes  to  abol- 
ish or  weaken  those  guarantees,  and  the 
thesis  he  is  called  upon  to  establish  is,  that 

201 


THE    PEOPLE'S    GOVERNMENT 

the  community  as  a  whole,  and  not  a  mere 
majority,  will  be  benefited  by  a  change.  It 
is  reasonable,  therefore,  that  the  community 
as  a  whole,  and  not  merely  an  apparent  or 
even  a  real  majority,  should  decide  the  ques- 
tion. It  is  precisely  this  for  which  the 
amending  clause  of  the  Federal  Constitution 
provides,  and  it  is  against  this  guarantee 
par  excellence  that  the  attack  is  principally 
leveled. 

So  feeble  and  so  indefensible  are  some  of 
the  proposals  of  change  in  the  organic  law, 
that  it  is  impossible  to  commend  them  on 
their  own  account;  and  the  position,  there- 
fore, is  taken  that  the  process  of  amending 
it  is  too  difficult,  and  that  it  should  be  made 
comparatively  easy.  Thus,  instead  of  dis- 
cussing specific  changes,  the  usual  attack  on 
the  Constitution  takes  the  form  of  opening 
wide  the  door  to  any  change  whatever  which 
a  class,  a  section,  or  an  interest  may  wish  to 
promote. 

202 


THE    CITIZEN    AS    A    LAW-MAKER 

One  writer,  having  invented  a  "Plan  for 
the  Democratization  of  the  Federal  Consti- 
tution," advocates  greater  facility  of  amend- 
ment, on  the  ground  that  this  is  necessary 
"in  order  to  render  successful  the  movement 
of  the  past  few  years  for  the  democratization 
of  government  in  this  country,  resulting  in 
experiments  with  the  initiative,  the  referen- 
dum, the  recall,  direct  nominations,  and  so 
forth;"  and  remarks  naively,  that  "it  is  sin- 
gular that  the  undemocratic  nature  of  the 
Federal  Constitution  has  not  received  more 
attention."  The  proposal  is,  then,  to  sweep 
away  the  constitutional  guarantees,  and 
thereby  to  give  place  to  political  experi- 
ments; if  happily  through  a  liberal  employ- 
ment of  the  initiative,  the  referendum,  and 
the  recall,  some  social  advantage  to  the 
majority  may  be  produced  at  the  minority's 
expense.  That  such  supposed  advantages 
would  prove  to  be  real,  is  admitted  to  be 
uncertain.  The  only  sure  thing  is,  that 

203 


THE    PEOPLE'S    GOVERNMENT 

they  would  probably  be  unconstitutional. 
"Should  the  experiments  referred  to,"  con- 
tinues the  writer,  "prove  successful,  much 
of  the  social  legislation  secured  by  their  aid 
would  ultimately  come  before  the  Supreme 
Court  of  the  United  States";  which  would, 
no  doubt,  declare  it  to  be  unconstitutional, 
and  thus  all  these  social  "experiments"  would 
come  to  naught!  To  avoid  this  calamity, 
the  Constitution  must  be  made  so  readily 
alterable  that  nothing  desired  by  the  major- 
ity would  be  contrary  to  it  in  its  amended 
form. 


THE    NATURE    OF    THE    OPPOSITION    TO    THE 
CONSTITUTION 

What,  then,  is  the  social  legislation  which 
it  is  so  important  to  render  possible?  The 
complaints  made  against  the  Constitution  as 
it  is  sufficiently  reveal  its  character: 

The  Constitution  of  the  United  States 

204 


THE    CITIZEN    AS    A    LAW-MAKER 

was  framed  by  and  in  the  interests  of 
a  property-possessing  class. 

Property  is  rightfully  the  possession 
of  society  as  a  whole ;  when  detained  in 
private  hands  it  becomes  a  permanent 
reward  for  a  temporary  service,  or  for 
no  service  at  all. 

The  pretended  right  to  transmit 
property  from  one  generation  to  an- 
other is  not  a  natural  right. 

Corporate  properties  should  be  val- 
ued according  to  their  present  cost  of 
physical  reproduction,  and  may  rightly 
be  taken  over  by  the  people  upon  that 
valuation. 

The  remuneration  of  the  worker  will 
be  determined  either  by  deeds  or  by 
needs,  as  may  hereafter  be  decided ;  but 
most  certainly  not  upon  the  basis  of 
allowing  him  a  reward  according  to  the 
importance  of  his  industrial  product. 

Employers,  as  such,  have  no  right  to 
exist.  The  aim  of  the  employed  should 
be  a  practice  that  will  enable  workers 
to  assume,  as  the  return  for  their  labor, 

205 


THE    PEOPLE'S    GOVERNMENT 

the  full  control  of  the  various  industries. 

The  idea  of  inalienable  natural  rights 
is  an  erroneous  eighteenth-century  con- 
ception. Men  have  no  rights,  except 
what  society  concedes  to  them  by  law. 

No  court  should  be  permitted  to 
nullify  any  act  of  a  legislative  body  on 
the  ground  that  it  is  unconstitutional. 

i 

If  these  propositions  were  merely  aca- 
demic theses,  they  might  well  be  passed 
over  in  silence;  but,  on  the  contrary,  they 
are  all  of  a  pragmatic  nature,  involve  the 
future  status  and  interests  of  our  fellow- 
citizens,  and  contemplate  legal  changes 
through  public  action.  They  supply  pre- 
cisely the  kind  of  materials  for  disturbing 
the  equanimity  of  unreflecting  minds  and 
for  promoting  the  designs  of  a  demagogue 
aiming  at  personal  advancement  by  the 
creation  of  a  numerous  popular  following. 
They  are  the  kind  of  material  we  may  ex- 
pect to  be  employed  in  those  "experiments 

206 


THE    CITIZEN    AS    A   LAW-MAKER 

in  social  legislation"  which  the  initiative 
and  the  referendum  are  designed  to  pro- 
mote. 

ALLEGED    CONSTITUTIONAL    BARRIERS    TO 
REFORM 

Unfortunately  some  of  these  proposals 
assume  a  close  connection  with  the  aims  of 
a  pure  and  high-minded  philanthropy,  which 
serves  to  conceal  their  sordid  side  and  im- 
parts to  them  a  glamour  of  righteousness 
which  they  do  not  really  possess.  Our  sym- 
pathies with  poverty  and  suffering  and  our 
antipathy  to  cruelty  and  extortion  are  ap- 
pealed to,  and  we  are  led  to  believe  that 
nothing  can  be  wrong  which  brings  to 
terms  those  who  have  revolted  our  con- 
sciences by  their  avarice  or  inhumanity. 
We  are  not,  in  fact,  called  upon  to  spare 
the  feelings  of  those  who  themselves  spare 
neither  manhood  nor  womanhood  nor  child- 
hood in  their  expedients  for  extortion. 

207 


THE    PEOPLE'S    GOVERNMENT 

But,  on  the  other  hand,  we  should  be  very 
untrue  to  the  cause  of  humanity,  as  well  as 
to  the  cause  of  justice,  if,  in  our  zeal  to  lift 
up  the  downtrodden  and  to  support  the  weak, 
we  should  sweep  away  the  basic  guarantees 
upon  which  the  whole  edifice  of  justice  is 
erected.  Loyalty  to  humanity  lays  upon  us 
a  larger  duty  than  the  immediate  destruc- 
tion of  some  single  evil,  however  monstrous 
it  may  seem  to  us.  To  cleanse  and  purify 
the  temple,  we  do  not  need  to  create  a  con- 
flagration; for,  so  far  as  just  and  needed 
social  reforms  are  concerned,  there  is  prob- 
ably not  a  single  one  that  requires  for  its 
accomplishment  any  radical  change  in  a 
system  of  government  by  which  we  have 
progressively  exterminated  so  many  evils. 
Nor  can  it  be  fairly  asserted  that  consti- 
tutional government,  as  understood  by  our 
fathers,  is  of  interest  chiefly  to  the  property- 
possessing  class,  particularly  the  large 
property-possessing  portion  of  society.  It 

208 


THE    CITIZEN    AS    A    LAW-MAKER 

has  never  been  its  aim  to  protect  any  par- 
ticular class  to  the  disadvantage  of  another; 
but,  on  the  contrary,  to  see  to  it  that  there 
be  no  insurmountable  barriers  to  block  the 
way  of  human  aspiration,  with  the  result 
that  there  are  few  fortunes  in  our  country 
the  foundations  of  which  were  not  laid  by 
men  who  once  worked  for  wages.  As  for 
the  excessively  great  fortunes,  their  pos- 
sessors are  the  least  likely  to  be  affected  by 
any  radical  legislation,  for  they  will  always 
find  a  safe  asylum  in  which  to  meditate 
upon  their  woes.  It  is  the  wage-earner, 
and  the  organizer  and  administrator  of 
wealth-producing  enterprises,  whose  hopes 
are  threatened  by  encroachments  upon  our 
constitutional  guarantees ;  for  the  prosperity 
of  the  great  mass  of  our  population  is  de- 
pendent upon  a  mutual  confidence  that  in- 
dustry will  be  suitably  rewarded  and  enter- 
prise enabled  to  prosper.  Nothing  could  so 
effectively  check  and  permanently  embar- 

15  209 


THE    PEOPLE'S    GOVERNMENT 

rass  the  creative  forces  of  the  country  as  the 
thought  that  the  results  of  industry  and 
enterprise  will  be  exposed  to  future  expro- 
priation. 

THE  RELATION  OF  REFORM  TO  PUBLIC  OPINION 

It  is  of  supreme  importance  for  the  citi- 
zen as  a  law-maker  to  form  a  just  conception 
of  the  true  relation  between  constitutional 
guarantees  and  public  opinion.  There  is 
no  constitutional  provision  that  could  long 
remain  effective  if  opposed  by  public  opin- 
ion in  any  real  sense ;  for  the  process  of  con- 
stitutional amendment,  although  impossible 
to  a  mere  majority,  presents  an  open  path 
for  the  forward  movement  of  a  serious  pub- 
lic determination  when  it  has  been  deliber- 
ately taken  on  defensible  grounds. 

It  is,  however,  necessary  to  distinguish 
between  public  opinion  and  a  mere  majority 
decision  when  the  latter  is  evidenced  only 
210 


THE    CITIZEN    AS    A   LAW-MAKER 

by  the  counting  of  affirmative  and  negative 
votes. 

A  plebiscite — including  under  this  term 
the  initiative  and  the  referendum — is  usu- 
ally not  an  expression  of  opinion  in  any  real 
sense.  It  is  usually  merely  an  opportunity 
for  a  choice  between  alternatives  so  ingeni- 
ously presented  as  to  facilitate  decision,  with- 
out analysis  and  without  reflection.  Most 
popular  votes  are  of  this  character. 

Let  us  take,  for  example,  the  plebiscite 
by  which  Louis  Napoleon  was  authorized 
personally  to  prepare  a  constitution  for 
France.  In  this  there  was  expressed  no 
"opinion,"  public  or  private,  as  to  what  the 
constitution  should  be ;  for  it  was  not  known 
what  it  was  designed  to  be.  The  vote  was, 
therefore,  not  an  expression  of  "opinion"  in 
any  proper  sense,  but  only  an  expression  of 
confidence  in  a  particular  person,  to  whom 
all  the  authority  of  the  people  in  this  matter 
was  bodily  transferred.  If  we  take  as  an- 
211 


THE    PEOPLE'S    GOVERNMENT 

other  example  the  plebiscite  by  which  the 
President  of  the  French  Republic  was  ac- 
corded the  title  and  functions  of  emperor, 
the  same  may  be  said;  only,  in  this  case, 
since  the  President  had  evidently  resolved 
to  absorb  most  of  the  public  powers,  the 
question  presented  was  merely  one  of  choice 
between  the  acceptance  of  an  -emperor  or  a 
revolution.  There  was,  therefore,  in  real- 
ity— leaving  aside  all  doubt  regarding  the 
regularity  and  actual  numerical  result  of 
the  vote — no  expression  of  public  opinion 
in  a  proper  sense;  that  is,  of  definite  con- 
clusions deliberately  arrived  at  by  a  balance 
of  considerations. 

The  truth  is,  that,  without  specific  discus- 
sion and  reference  to  general  principles, 
public  opinion  does  not  exist.  Popular 
demonstrations  of  mere  feeling,  whether  of 
sympathy  or  antipathy,  do  not  constitute 
public  opinion,  no  matter  how  extensive  they 
may  be,  even  though  they  include  the  par- 

212 


THE    CITIZEN    AS    A    LAW-MAKER 

ticipation  of  the  entire  population.  With- 
out a  definite  proposal,  comprising  not  only 
some  precise  end  to  be  attained  but  a  definite 
means  of  attaining  it  and  some  considera- 
tion of  its  effect  if  successful,  public  opinion 
does  not  exist.  Mere  popular  unrest  and 
vague  social  aspirations  do  not  of  them- 
selves constitute  public  opinion.  The  pres- 
sure resulting  from  these  may  lead  to  the 
formation  of  opinions;  and  these,  if  they 
become  general  through  discussion,  may 
ultimately  take  on  a  public  character,  but 
not  unless  they  assume  the  form  of  definite 
propositions. 

It  is  evident,  therefore,  that  reforms,  to 
become  effectual,  must  await  the  growth  of 
intelligent  appreciation.  The  only  way  to 
promote  them  is  to  fix  attention  upon  them 
by  debate  and  by  appealing  to  the  reason- 
ing powers.  Until  this  is  done,  even  though 
legislation  be  enacted,  it  will  not  be  re- 
spected. It  is  useless,  therefore,  to  force  it 

213 


THE    PEOPLE'S    GOVERNMENT 

prematurely  upon  society.  Merely  to  ex- 
periment is  worse  than  useless ;  it  is  danger- 
ous. It  incurs  the  risk  of  inducing  the 
general  belief  that  all  legislation  and  all  the 
social  arrangements  resulting  from  it  are 
merely  empirical;  that  everything  is  purely 
arbitrary;  and  that  nothing  is  to  be  de- 
pended upon.  Such  a  regime  would  sub- 
stitute imagination  for  reason  and  emotion 
for  experience.  In  short,  government  by 
impulse  is  only  another  name  for  anarchy. 

THE   CONFLICT   OF    CONSTITUTIONALISM   WITH 
IMPERIALISM 

Are  these  conclusions  in  any  respect  a 
condemnation  of  democracy?  By  no  means. 
The  error  of  many  political  speculations 
lies  in  representing  that  human  progress, 
especially  in  legislation,  consists  merely  in 
the  triumph  of  democracy  over  monarchy, 
of  the  will  of  many  over  the  will  of  one.  A 
little  reflection  is  sufficient  to  show  that  this 

214 


THE    CITIZEN    AS    A    LAW-MAKER 

is  not  the  case.  The  real  struggle  is  not  be- 
tween democracy  and  monarchy,  it  is  be- 
tween constitutionalism  and  imperialism ;  be- 
tween the  effort  to  guarantee  to  every 
individual  his  inherent  rights  and  the  dis- 
position to  override,  to  ignore,  or  to  deny 
them,  no  matter  by  whom  it  is  entertained. 

Democracy,  as  well  as  monarchy,  may  be 
imperial  and  unconstitutional.  The  will  of 
many  may  be  as  arbitrary,  as  absolute,  as 
unjust,  and  even  as  cruel  as  the  will  of  one. 
Progress  toward  the  recognition  and  the 
guarantee  of  all  inherent  rights  can  be  made 
only  by  opposing  imperialism  in  whatever 
guise  it  may  appear,  and  by  sustaining  con- 
stitutionalism as  a  system  of  public  guar- 
antees. 

If  we  ask  ourselves  in  what  form  imperial- 
ism presents  itself  to  us,  in  this  age  and  in 
this  country,  we  at  once  perceive  that  our 
dangers  do  not  arise  from  monarchy  but 
from  "authoritative  democracy."  Wher- 
215 


THE    PEOPLE'S    GOVERNMENT 

ever  the  power  of  government  approaches 
omnipotence,  there  lies  the  danger  of  op- 
pression. The  eternal  battle  of  right 
against  might  is  not  merely  between  forms 
of  government,  but  against  absolutism  in 
any  form  of  government;  for  in  every  form 
of  government  there  exists  a  power  to  legis- 
late, and  the  power  to  legislate  affects  the 
lives,  the  liberties,  and  the  property  of  all. 
The  question  for  democracy  to  answer  is, 
therefore:  What  does  it  intend  to  do  in  the 
field  of  legislation?  Will  it  renounce  the 
passion  for  omnipotence?  Will  it  restrain 
and  limit  its  undoubted  powers?  Will  it 
respect  the  inherent  rights  of  all,  even  of  a 
small  and  otherwise  helpless  minority?  Will 
it  freely  and  gladly  guarantee  those  rights 
by  a  solemn  compact?  Or,  on  the  other 
hand,  will  it  glory  in  its  strength,  consult 
only  the  interest  of  a  controlling  group, 
ignore  the  politically  powerless,  and  with- 
draw or  remodel,  to  suit  its  pleasure,  the 

216 


THE    CITIZEN    AS    A   LAW-MAKER 

guarantees  that  have  been  freely  accorded 
by  a  nobler  theory  of  authority? 

These  are  questions  which  the  citizen 
must  answer;  and,  in  answering  them,  he 
will  determine  whether  we  live  in  an  era  of 
progress  or  an  era  of  retrogression.  The 
starting-point  of  legislation  in  modern  times 
was  law-making  by  arbitrary  decree,  based 
upon  the  conception  of  the  absolute  nature 
of  the  State.  The  goal  toward  which 
political  progress  has  hitherto  tended  has 
been  legislation  on  the  basis  of  mutual  obli- 
gation, with  the  primary  guarantee  of  in- 
herent rights.  Imperialism  and  constitution- 
alism— these  are  the  great  landmarks.  It  is 
upon  this  frontier  that  the  battle  must  be 
waged.  What  is  the  answer  of  democracy? 

PRINCIPLES   AND   PERSONALITIES 

Regarded  concretely,  this  conflict  may  be 
reduced  to  very  simple  terms.  On  the  one 

217 


THE    PEOPLE'S    GOVERNMENT 

hand  are  principles  capable  of  clear  state- 
ment and  universal  application — the  immu- 
table principles  of  justice  based  on  mutual 
obligation.  On  the  other  hand  are  hu- 
man personalities — often  highly  intelligent, 
plausible,  eloquent,  and  sometimes  person- 
ally attractive — who,  in  exchange  for  power, 
promise  to  those  who  follow  them  rich  re- 
wards. Trust  them,  they  pledge  them- 
selves, and  they  will  so  undo  the  work  of  the 
past,  they  will  so  reapportion  the  wealth  of 
the  world,  they  will  so  reconstruct  society, 
that  those  who  have  felt  themselves  out- 
stripped in  the  race  of  life  shall  wear  its 
laurels,  shall  rejoice  in  plenty,  and  shall  rule 
where  they  have  served. 

Delightful  and  fascinating  prospect! 
But  is  it  possible  that  these  urgent  protago- 
nists of  change  will  in  the  hour  of  triumph 
forget  themselves,  or  permit  themselves  to 
be  forgotten?  For  what  purpose  have  they 
wrought  out  their  theories  of  social  recon- 

218 


THE    CITIZEN    AS    A    LAW-MAKER 

struction?  What  new  energies  of  produc- 
tivity have  they  brought  to  light?  What 
means  of  making  two  blades  of  grass  grow 
where  only  one  grew  before  have  they  in- 
vented? What  new  resources  have  they 
discovered?  On  what,  then,  do  they  base 
their  promises? 

Alas,  when  their  proposals  are  carefully 
examined,  they  usually  disclose  no  pro- 
found economic  discovery,  no  new  method 
of  creating  anything  of  value  that  did  not 
exist  before.  It  is  simply  a  new  process  of 
dividing  what  the  industry  and  enterprise 
of  others  have  created,  or  what  their  pru- 
dence and  abstinence  have  prevented  from 
being  consumed.  Now  it  is  the  repudiation 
of  previous  obligations;  now  it  is  the  de- 
preciation of  the  coinage ;  now  it  is  the  issue 
of  paper  promises  to  pay  in  place  of  actual 
payment;  now  it  is  obtaining  something  for 
nothing  from  the  public  treasury  for  local 
use;  now  it  is  to  throw  the  burden  of  taxa- 

219 


THE    PEOPLE'S    GOVERNMENT 

tion  upon  this  section  or  upon  that  class; 
now  it  is  to  appropriate  to  public  use  that 
which  has  been  built  up  by  private  enter- 
prise; now  it  is  to  expropriate  this  industry 
for  the  benefit  of  that  political  clientele! 
And  what  does  the  honest  citizen  think  of 
such  proposals?  Does  he  imagine  that  ap- 
peals to  his  pride  as  a  partisan,  to  his  in- 
terest as  a  member  of  a  guild,  to  his  sym- 
pathy as  belonging  to  a  class  or  a  section 
will  in  the  end  be  of  any  substantial  benefit 
to  him?  But,  even  if  they  were,  what,  as 
an  honest  man,  does  he  think  of  such 
methods  of  procedure  ?  What  will  ultimate- 
ly become  of  society,  if  laws  of  arbitrary  re- 
distribution are  substituted  for  equal  laws? 
And  what  security  is  there  against  such  laws, 
if  constitutional  guarantees  are  swept  away  ? 

THE  DANGER  OF  AUTHORITATIVE  DEMOCRACY 

Against  the  constitutional  guarantees  it 

220 


THE    CITIZEN    AS    A    LAW-MAKER 

is  often  urged  that  the  people  are  the  sover- 
eigns, and  that  they  have  the  right  to  exer- 
cise their  sovereign  will  in  any  way  they 
please. 

That  is  the  theory  of  authoritative  de- 
mocracy as  distinguished  from  constitutional 
democracy.  The  one  returns  to  the  doc- 
trine of  absolutism  and  declares,  Populus 
legibus  solutus  est — the  people  are  above 
the  law ;  their  will  is  the  source  of  law.  The 
other  replies,  "The  people  are  sovereign, 
but  there  exists  no  such  thing  as  absolute 
sovereignty;  the  sovereign  also  is  subject  to 
law."  He  is  not  a  true  sovereign,  in  any 
sense  that  democracy  can  accept,  who  is  not 
willing  to  set  limits  to  his  powers,  and  to 
recognize  his  own  subordination  to  a  funda- 
mental law. 

The  basic  question  underlying  the  whole 
subject  of  the  citizen's  relation  to  legislation 
is  this:  Are  we  to  have  a  government  of 
laws,  or  a  government  of  men?  Shall  we 

221 


THE    PEOPLE'S    GOVERNMENT 

place  the  emphasis  upon  principles,  or  upon 
personal  volitions?  Shall  we  base  govern- 
ment upon  what  we  can  previously  agree 
upon  as  in  accord  with  mutual  obligation, 
or  shall  we  base  it  upon  the  fluctuating 
wishes  of  an  interested  majority? 

Authoritative  democracy,  the  Napoleonic 
type  of  democracy,  the  type  which  formerly 
prevailed  in  France,  places  its  confidence  in 
persons.  It  results  in  a  government  of 
men.  Constitutional  democracy,  the  Wash- 
ingtonian  type  of  democracy,  the  type  which 
has  hitherto  prevailed  in  the  United  States, 
places  its  confidence  in  principles.  It  re- 
sults in  a  government  of  laws. 

Constitutional  democracy  takes  into  ac- 
count the  continuity  of  national  existence 
and  the  essential  unity  of  the  nation  in  the 
past,  the  present,  and  the  future,  as  ex- 
pressed in  its  deliberately  organized  insti- 
tutions. Authoritative  democracy  takes  no 
account  of  the  unity  or  the  continuity  of  the 

222 


THE    CITIZEN    AS    A   LAW-MAKER 

national  life.  It  neither  respects  the  past, 
nor  considers  the  future ;  it  acts  for  the  pres- 
ent only,  impelled  by  volitions  that  are  dom- 
inant today  but  may  not  exist  tomorrow. 

But  the  real  danger  of  authoritative  de- 
mocracy is  that  it  opens  the  door  to  imperial- 
ism. It  proposes  to  rule,  not  by  discussion 
and  deliberation,  but  by  plebiscite.  The 
nominal  proposal  is  that  the  people  are  to 
rule;  but  the  people  are  occupied  with  their 
own  affairs.  They  are,  therefore,  invited 
to  choose  uninstructed  plenipotentiaries;  and 
it  is  these  who  in  reality  will  decide  every- 
thing. To  the  people  will  then  remain 
nothing  but  the  doubtful  prerogative  of 
assent. 

GOVERNMENT   BY  OFFICIAL  OLIGARCHY 

How  readily,  and  in  a  sense  uncon- 
sciously, and  yet  inevitably,  authoritative 
democracy  deserts  its  own  primary  idea  and 

223 


THE    PEOPLE'S    GOVERNMENT 

substitutes  personalities  for  principles,  is 
illustrated  by  a  proposal  recently  made  by 
its  recognized  chief  in  the  United  States, 
for  whose  eminent  ability  and  high  official 
position  it  is  our  duty  to  entertain  a  pro- 
found respect.  This  does  not,  however, 
exempt  us  from  the  further  duty  of  sub- 
jecting to  examination  the  suggestion, 

%. 

officially  offered,  that  legislation  and  public 
policies,  which  hitherto  have  been  proposed 
and  advocated  by  public  representative  as- 
semblies of  the  people,  convoked  for  this  pur- 
pose, should  henceforth  be  confided  solely 
to  a  junta  of  office-holders  and  office- 
seekers,  the  people  retaining  no  other  privi- 
lege than  that  of  giving  or  withholding 
their  subsequent  assent. 

In  a  message  to  Congress,  the  President 
of  the  United  States  has  suggested  that  a 
federal  law  be  adopted,  not  only  depriving 
the  people  of  the  privilege  of  meeting  in 
party  conventions  for  the  nomination  of 

224 


THE    CITIZEN    AS    A   LAW-MAKER 

candidates  for  public  office,  but  depriving 
the  people  of  the  right  to  choose  their  own 
delegates  to  such  conventions  for  the  pur- 
pose of  framing  a  platform  of  party  prin- 
ciples; that  is,  of  issuing  preliminary  man- 
dates to  their  candidates  for  office.  "I 
suggest,"  runs  this  extraordinary  communi- 
cation— which  was  not  called  for  by  any 
popular  interest  in  the  subject  or  either  pre- 
ceded or  followed  by  public  discussion  of 
the  proposal — "I  suggest  that  conventions 
for  the  purpose  of  adopting  a  platform 
should  consist,  not  of  delegates  chosen  for 
this  single  purpose,  but  of  the  nominees  for 
Congress,  the  nominees  for  vacant  seats  in 
the  Senate  of  the  United  States,  the  Sena- 
tors whose  terms  have  not  yet  closed,  the 
national  committees,  and  the  candidates  for 
the  presidency  themselves."  * 

What,  then,  is  the  purpose  of  this  un- 

i  See  President  Wilson's  address  to  Congress  of  December 
2,  1913. 

16  225 


THE    PEOPLE'S    GOVERNMENT 

precedented  concentration  of  power  in  a 
few  official  personalities?  It  is  alleged  to 
be,  "that  platforms  may  be  framed  by  those 
responsible  to  the  people  for  carrying  them 
into  effect"! 

Are  political  platforms  to  be  held  more 
sacred  in  the  eyes  of  those  who  are  respon- 
sible for  carrying  them  into  effect  because 
they  are  their  own,  and  not  the  people's, 
platforms?  This  is  the  alleged  reason  for 
the  President's  suggestion.  Why  not,  then, 
hand  over  to  these  select  officials,  prospec- 
tive and  actual,  the  whole  conduct  of  gov- 
ernment; since  the  people  may  not  freely 
make  their  own  platforms  by  choosing  their 
own  unofficial  delegates?  But  why  all  this 
array  of  "nominees"  and  "national  com- 
mittees"? If  "senators  whose  terms  have 
not  closed"  are  to  be  included  in  the  official 
oligarchy,  certainly  a  president  whose  term 
of  office  has  not  expired  would  have  a  dom- 
inant influence  in  this  controlling  body; 

226 


THE    CITIZEN    AS    A   LAW-MAKER 

especially,  if  he  also  be  a  nominee  to  suc- 
ceed himself.  Who,  in  short,  is  so  clearly 
"responsible  to  the  people"  as  the  actual 
head  of  the  State?  And  who  is  likely  to 
have  so  much  influence  in  this  indirectly 
chosen  body?  Why  not,  then,  be  done 
with  it,  and  place  all  the  power  in  the  hands 
of  the  president?  Of  course,  we  could  not 
call  him  "emperor,"  but  we  should  in  that 
case  have  a  law-maker  who  could  be  held 
"responsible  to  the  people."  His  problem 
would,  moreover,  be  a  very  simple  one, 
namely,  to  give  to  the  people  exactly  what 
he  thought  the  majority  wanted! 

This  substitution  of  the  Napoleonic  for 
the  Washingtonian  theory  of  government 
would  greatly  simplify  the  task  of  the  citi- 
zen. It  would  relieve  him  not  only  of  all 
responsibility  but  from  all  discussion  and 
reflection  upon  public  questions.  It  is  the 
logical  consequence  of  authoritative  de- 
mocracy, which  consists  in  practice  in  plac- 

227 


THE    PEOPLE'S    GOVERNMENT 

ing  the  public  powers  in  the  hands  of  a 
dominant  personality  to  be  used  ad  libitum; 
subject  only  to  the  assent  of  those  who  have 
ceased  to  examine  public  policies  for  them- 
selves; who  do  not  care  to  be  represented 
by  others,  through  whom  they  may  deliber- 
ately and  publicly  discuss  them;  and  who 
are  content,  by  a  simple  act  of  will,  to  trans- 
fer authority  to  their  uninstructed  plenipo- 
tentiaries, to  whose  decisions  they  passively 
assent. 

Are  the  American  people  desirous  of 
adopting  this  oriental  conception  of  public 
life,  or  will  they  continue  to  adhere  to  the 
representative  system  of  constitutional  de- 
mocracy? This  is  a  question  which  at  this 
moment  demands  an  answer.  If  it  be  an- 
swered in  favor  of  the  system  we  have  in- 
herited from  our  fathers,  it  will  be  necessary 
to  stand  firmly  for  that  system,  or  the  de- 
cision will  be  unavailing.  Reversion  to 
absolutism  is  the  inevitable  consequence  of 

228 


THE    CITIZEN    AS    A   LAW-MAKER 

public  indifference.  The  whole  burden  of 
good  government  rests  upon  the  vigilance 
of  the  citizen;  first,  in  guarding  his  con- 
stitutional prerogatives,  and  then  in  seeing, 
through  those  whom  he  charges  with  the 
carrying-out  of  definite  policies,  that  the, 
principle  of  mutual  obligation  be  made  ef- 
fective in  legislation.  To  know  and  com- 
prehend this  principle  requires  neither 
learning,  nor  superior  faculties,  nor  high 
social  position.  Such  knowledge  is  the 
birthright  of  the  common  man,  who  knows 
that  what  is  his  does  not  belong  to  another, 
and  that  what  belongs  to  another  does  not 
belong  to  him.  It  is  to  the  plain  citizen, 
who  seeks  no  public  office,  envies  no  man's 
plunder,  and  is  strong  in  his  own  manhood 
and  in  his  respect  for  manhood's  rights,  that 
we  must  look  for  the  permanence  of  the  State 
and  the  rule  of  justice  in  the  law.  It  will  be 
not  through  numbers,  but  only  through  char- 
acter, that  democracy  will  endure. 

229 


VI 

THE    CITIZEN   AS    SUBJECT 
TO    LAW 


VI 

THE   CITIZEN   AS    SUBJECT   TO   LAW 

Thus  far  our  thoughts  have  been  occupied 
with  the  nature  of  the  State,  the  basis  of 
the  law,  and  the  function  of  the  citizen  as 
a  law-maker.  It  has  been  pointed  out  that 
the  people,  duly  organized,  are  sovereign,  in 
the  only  sense  in  which  sovereignty  has  a 
rightful  existence;  and  that  every  citizen 
shares  in  the  exercise  of  this  ultimate  politi- 
cal authority.  Within  the  limits  of  a  right- 
ful rule  of  the  majority,  he  is  a  legitimate 
ruler.  It  is,  perhaps,  less  flattering  to 
human  pride  to  be  obliged  to  recall  the  fact 
that  the  citizen  is  also  subject  to  the  law, 
and,  if  he  chance  to  belong  to  the  minority, 
subject  to  forms  of  law  which  he  has  not 
favored  and  may  not  desire  to  obey.  Is  he, 

233 


THE    PEOPLE'S    GOVERNMENT 

as  a  citizen,  prepared  to  stand  this  test? 
Will  he  yield  a  voluntary  obedience  to  the 
law,  simply  because  it  is  the  law,  when  it 
does  not  suit  his  convenience  to  obey  it,  and 
even  when  in  principle  it  does  not  receive  his 
approval? 

Upon  the  answer  to  this  question  turns 
the  effective  authority,  and  even  the  very 
existence,  of  the  State.  If  the  answer  be 
negative,  we  are  confronted  with  the  spirit  of 
revolution ;  and  out  of  revolution,  if  that 
spirit  continues,  must  come  either  a  new 
and  more  acceptable  State,  or  anarchy. 

It  is  important  to  recall  the  fact  that 
revolution  is  not  an  infrequent  phenomenon, 
and  that  the  greater  number  of  modern 
States  are  the  offspring  of  revolutionary 
action.  These  movements,  however,  are  of 
quite  different  types  and  have  produced 
quite  different  results.  It  is,  perhaps, 
worth  while  to  distinguish  between  them  as 
regards  their  aims,  the  permanence  of  their 

234 


THE    CITIZEN    SUBJECT    TO    LAW 

effects,  and  the  degree  in  which  they  have 
secured  stability  to  the  principles  of  human 
justice. 

THE    CHARACTER    OF    THE    AMERICAN    REVO- 
LUTION 

The  American  Revolution,  as  we  have  al- 
ready pointed  out,  was  a  revolt,  not  merely 
against  royal  authority,  but  against  the  laws 
of  the  British  Parliament.  The  objection 
to  these  laws  was  that  they  were  expres- 
sions of  absolute  sovereignty,  assuming 
and  enforcing  the  unqualified  right  of 
certain  men  to  make  laws  for  other  men 
who  were  regarded  as  possessing  no 
rights  which  their  rulers  did  not  accord  to 
them. 

The  revolt  of  the  thirteen  American 
colonies  was  distinctly  and  exclusively 
against  this  doctrine  of  absolute  sover- 
eignty, to  which  it  opposed  the  idea  of  gov- 
ernment with  the  "consent  of  the  governed." 

235 


THE    PEOPLE'S    GOVERNMENT 

This  necessarily  implied  the  existence  of 
inherent  rights  on  the  part  of  the  individual, 
which  government  is  in  principle  bound  to 
respect.  In  constituting  a  new  govern- 
ment, therefore,  these  rights  were  jealously 
guarded.  The  idea  of  a  strong  central  au- 
thority remote  from  local  influence  was 
looked  upon  with  suspicion.  Individual 
liberty  having  been  secured,  it  was  desirable 
that  it  be  not  carelessly  sacrificed.  In  the 
State  constitutions  which  were  formed  dur- 
ing the  Revolution,  individual  rights  and 
liberties  were  carefully  guarded  by  the  in- 
clusion of  bills  of  rights  in  the  organic  law; 
and  when,  after  the  failure  of  the  defensive 
league  created  under  the  Articles  of  Con- 
federation, the  Federal  Constitution  was 
finally  adopted,  two  provisions  were  em- 
bodied in  that  compact  which  had  never  be- 
fore been  united  in  any  federal  system :  ( 1 ) 
the  reservation  by  the  people  of  certain 
rights  which  could  not  be  legally  taken  away 

236 


THE    CITIZEN    SUBJECT    TO    LAW 

by  legislative  action;  and  (2)  the  creation 
of  a  judicial  tribunal  with  power  to  inter- 
pret the  fundamental  law,  and  thus  to  pre- 
vent legislative  encroachment  upon  the  in- 
herent rights  which  had  been  placed  beyond 
the  danger  of  invasion  by  any  power  within 
the  State. 

By  these  two  provisions,  for  the  first  time 
in  the  history  of  the  world,  the  citizen  was 
placed  in  a  position  of  security  and  assured 
of  the  protection  of  equal  laws.  The  result 
has  been  that  during  a  period  of  a  hundred 
and  twenty-five  years  a  nation  then  contain- 
ing four  or  five  million  inhabitants  has 
grown  to  be  one  of  nearly  a  hundred  mil- 
lions, expanded  over  a  territory  many  times 
more  extensive  than  that  occupied  by  the 
original  colonies,  and  composed  of  more 
than  three  times  as  many  States,  without 
the  occurrence  of  a  successful  revolution; 
and  without  a  serious  revolt  of  any  kind, 
except  an  act  of  attempted  separation  for 

237 


THE    PEOPLE'S    GOVERNMENT 

the  maintenance  and  extension  of  the  in- 
stitution of  slavery. 

THE  CHARACTER  OF  THE  FRENCH  REVOLUTION 

Quite  different,  as  we  have  seen,  was  the 
character  of  the  French  Revolution.  In- 
spired in  a  great  degree  by  the  example  of 
the  American  colonies,  the  people  of  France 
revolted  against  royal  authority;  but  not 
against  the  principle  of  absolute  sover- 
eignty. On  the  contrary,  although  the 
American  Declaration  of  Independence  was 
imitated  in  the  French  Declaration  of  the 
Rights  of  Man  and  of  the  Citizen,  that 
declaration  was,  in  reality,  only  a  declama- 
tion against  royalism,  was  not  further  con- 
sidered by  the  revolutionary  movement,  and 
was  never  embodied  in  any  French  constitu- 
tion. From  the  first  one  it  was  expressly 
excluded,  on  the  ground  that  an  organic 
law  should  be  confined  to  the  determination 

238 


THE    CITIZEN    SUBJECT    TO    LAW 

of  a  form  of  government,  and  should  not 
place  restrictions  upon  the  powers  ordained. 

As  a  consequence,  the  French  Republic 
which  succeeded  the  overthrow  of  the  Bour- 
bon dynasty  did  not  repudiate  the  principle 
of  absolute  sovereignty,  but  tacitly  adopted 
it  as  the  foundation  of  the  State;  simply 
transferring  it  from  the  Crown  to  the  peo- 
ple, and  through  the  people  to  the  legislative 
assembly,  which  retained  all  the  powers  that 
had  previously  been  possessed  and  exercised 
by  the  king. 

Since  that  time  France  has  been  a  repub- 
lic, an  empire,  a  Bourbon  kingdom,  an 
Orleans  kingdom,  a  second  time  a  republic, 
again  an  empire,  and  is  now  for  the  third 
time  a  republic.  During  this  period  there 
have  been  in  France  eleven  different  con- 
stitutions, no  one  of  which,  except  the  pres- 
ent, has  remained  in  force  for  more  than 
twenty  years.  Under  all  these  regimes 
France,  although  nominally  a  constitutional 

239 


THE    PEOPLE'S    GOVERNMENT 

State,  has  really  been  under  an  absolute 
sovereignty;  that  is,  a  sovereignty  upon 
which  there  has  been  no  constitutional  re- 
straint beyond  a  merely  formal  partition  of 
authority,  rendered  more  or  less  ineffectual 
by  the  actual  predominance  of  some  one 
governmental  agency  in  which  the  people 
for  the  time  being  have  placed  their  faith. 
Now  it  was  the  parliament,  now  the  king, 
and  now  the  emperor  who  possessed  the 
chief  power;  but  there  was  always  some- 
where in  the  State  an  overruling  authority 
able  to  dictate  the  law  ad  libitum.  When 
the  parliament  became  offensive,  there  was 
nothing  to  do  but  for  the  king  or  the 
emperor  to  break  it  up,  and  either  send  its 
members  home  or  put  them  in  prison. 
When  the  king  became  intolerable,  there 
was  nothing  to  do  but  to  dethrone  him  and 
supersede  his  rule  by  a  more  popular 
regime.  Nowhere  in  this  system — and  least 
of  all  in  a  so-called  "responsible  govern- 

240 


THE    CITIZEN    SUBJECT    TO    LAW 

merit"  changing  every  few  months — is 
there  any  element  of  stability.  Nor  can  it 
be  imagined  to  exist  in  any  parliamentary 
system  whatever,  unless  this  be  restricted  by 
constitutional  limitations  under  the  protec- 
tion of  an  independent  judiciary.  Without 
these  restraints,  there  can  be  no  security 
against  the  fluctuating  decisions  of  popular 
majorities,  which  are  frequently  influenced 
by  causes  that  have  no  connection  with  the 
general  principles  of  human  justice.  Some- 
times it  has  been  the  price  of  bread,  some- 
times official  extravagance,  sometimes  an 
error  in  foreign  policy,  sometimes  mere 
ennui  with  a  too  prosaic  administration,  and 
sometimes  nothing  at  all  but  the  declama- 
tion of  an  ambitious  rhetorician  that  has 
upset  the  government. 

THE    CONSTITUTION    A    BAR    TO    REVOLUTION 

When  we  compare  our  own  system  with 
that    of    other    republics — especially    with 

17  241 


THE    PEOPLE'S    GOVERNMENT 

those  in  Latin  countries,  where  the  tradi- 
tions of  absolutism  in  some  form  still  linger 
— we  find  that  the  chief  differences  consist 
in  two  circumstances:  (1)  that,  in  the 
United  States,  while  many  foolish  laws,  and 
even  some  unequal  laws,  may  be  passed, 
these,  while  the  Constitution  remains  un- 
changed, cannot  be  excessively  oppressive, 
because  of  the  explicit  guarantees  of  in- 
dividual rights  and  liberties;  and  (2)  that 
the  duty  is  imposed  upon  the  judiciary  by 
our  fundamental  law,  when  appeal  is  made 
to  it,  to  declare  illegal  all  legislation  which 
violates  these  guarantees — a  security  which 
the  Latin  republics  do  not  afford. 

Aside  from  certain  minor  inconveniences, 
there  is  little  in  the  demands  made  upon  his 
obedience  to  which  a  citizen  of  the  United 
States  may  not  freely  assent.  His  impor- 
tant rights,  at  least,  have  not  in  the  past 
been  greatly  menaced.  There  is,  therefore, 
no  great  incitement  to  the  revolutionary 

242 


THE    CITIZEN    SUBJECT    TO    LAW 

spirit  on  the  part  of  those  who  in  principle 
are  disposed  to  recognize  the  supremacy  of 
the  law.  The  constitutional  guarantees 
and  the  courts  are  always  there  to  protect 
him  from  serious  spoliation,  and  even  the 
political  administration  is  subject  to  the  law. 
This  cannot  be  said  of  countries  where 
absolute  sovereignty,  whether  it  be  vested 
in  the  Crown,  in  the  Parliament,  or  in  the 
people,  still  prevails.  Under  such  condi- 
tions there  is  always  a  basis  for  appeal  to 
the  revolutionary  spirit  and  for  finding  revo- 
lutionary motives.  The  mere  fact  that  a 
government  is  absolute,  no  matter  in  what 
mold  it  may  be  cast,  is  a  reason  for  resist- 
ance, and  sooner  or  later  a  concrete  occasion 
is  certain  to  be  furnished ;  for,  if  unopposed, 
it  is  in  the  very  nature  of  absolute  power 
to  commit  excesses.  It  is  only  when  the 
principle  of  absolute  sovereignty  is  entirely 
abandoned,  and  the  principle  of  mutual 
obligation  is  substituted  in  its  place,  that  the 

243 


THE    PEOPLE'S    GOVERNMENT 

grounds  for  revolt  are  effectually  removed. 
But  such  a  guarantee  cannot  exist  outside 
of  a  constitutional  reservation  of  rights 
which  majority  legislation  cannot  invade; 
and,  even  if  it  existed,  such  a  reservation 
would  have  no  ultimate  security  unless  the 
obligation  to  respect  it  could  be  sustained 
by  a  recognized  judicial  tribunal. 

Under  any  system,  no  doubt,  revolution 
would  be  conceivable;  but,  where  individual 
rights  and  liberties  are  properly  guaranteed, 
it  would  at  least  be  unreasonable.  Theo- 
retically, although  constitutionalism  is  an 
obvious  obstruction  to  revolution,  if  there 
should  be  developed  a  general  hostility  to 
law  as  law,  and  if  there  should  be  a  return 
to  the  supremacy  of  force  exercised  by  the 
elements  of  discontent,  the  Constitution 
might  itself  be  swept  away.  The  whole  of 
civilization  as  it  exists  among  us  would,  in 
that  case,  be  exposed  to  the  peril  of  a  like 
calamity.  If  there  should  ever  come  a  time 
244 


THE    CITIZEN    SUBJECT    TO    LAW 

when  powerful  interests,  of  whatever  kind, 
should  unite  to  annihilate  the  guarantees 
of  the  Federal  Constitution,  such  a  revolu- 
tion would  exist.  If  there  were  no  resort 
to  violence,  it  might  be  bloodless;  but  it 
would  be  none  the  less  a  revolution.  It  is, 
therefore,  of  supreme  importance  that  the 
friends  of  law  as  law  should  never  cease  to 
stand  guard  over  those  guarantees  of  in- 
dividual rights  and  liberties  upon  which  our 
system  of  government  is  based.  Taken  by 
surprise,  they  might  suddenly  awaken  to  a 
state  of  fact  of  which  at  present  many  well- 
meaning  citizens  have  no  suspicion.  They 
would  then  discover,  too  late,  perhaps,  that 
the  noblest  political  conception  that  has 
ever  yet  entered  into  the  mind  of  man  had 
been  rendered  fruitless  by  private  and  class 
interests  gradually  undermining  the  guar- 
antees which  have  hitherto  secured  the  in- 
herent rights  of  individuals  and  the  stability 
of  the  State  under  equal  laws. 

245 


THE    PEOPLE'S    GOVERNMENT 

THE    ATTACK    ON    THE    JUDICIAL    AUTHORITY 

It  has  been  pointed  out  that  the  second 
distinctive  characteristic  of  our  political  sys- 
tem is  the  place  assigned  in  it  to  the  ju- 
diciary. The  Federal  Constitution  not 
only  fixes  limits  beyond  which  legislation 
by  Congress  and  by  the  Stages  cannot 
go,  but  it  subjects  to  the  decision  of 
the  Supreme  Court  the  questions  of  con- 
stitutionality that  may  arise  through  the 
errors  or  encroachments  of  legislative  en- 
actments. 

The  extent  of  this  prerogative  on  the  part 
of  the  judiciary,  and  even  its  reality,  have 
more  than  once  been  made  the  subject  of 
discussion;  but  that  the  Supreme  Court  of 
the  United  States  has,  and  was  intended  to 
have,  authority  in  determining  the  constitu- 
tionality of  laws  does  not  in  the  light  of  his- 
tory admit  of  doubt. 

At  the  time  when  the  Federal  Constitu- 

246 


THE    CITIZEN    SUBJECT    TO    LAW 

tion  was  adopted,  the  necessity  of  placing 
limitations  on  the  legislative  bodies  had  al- 
ready been  keenly  felt.  "We  had  not  only 
been  sickened  and  disgusted  for  years  with 
.  .  .  the  omnipotent  power  of  the  British 
Parliament,"  wrote  James  Iredell  in  1786, 
"but  had  severely  smarted  under  its  effects. 
We  felt  in  all  its  rigor  the  mischiefs  of  an 
absolute  and  unbounded  authority,  .  .  .  and 
should  have  been  guilty  of  the  basest  breach 
of  trust,  as  well  as  the  grossest  folly,  if  ... 
wre  had  established  a  despotic  power  among 
ourselves.  .  .  .  We  provided,  or  meant  to 
provide  (God  grant  our  purpose  may  not 
be  defeated),  for  the  security  of  every  in- 
dividual, as  well  as  a  fluctuating  majority 
of  the  people." 

The  means  for  obtaining  this  security 
were  discussed  in  the  Constitutional  Con- 
vention in  1787,  and  the  theory  of  judicial 
cooperation  in  the  revision  of  the  laws  before 
they  were  adopted  was  debated  and  re- 

247 


THE    PEOPLE'S    GOVERNMENT 

jected.  The  alternative  was  the  contention 
of  Iredell,  that  "the  Constitution,  being  a 
fundamental  law,  .  .  .  the  judicial  power, 
in  the  exercise  of  their  authority,  must  take 
notice  of  it  as  the  groundwork  of  that  as 
well  as  all  other  authority ;  and,  as  no  article 
of  the  Constitution  can  be  repealed  by  a 
legislature,  which  derives  its  whole  power 
from  it,  it  follows  either  that  the  funda- 
mental unrepealable  law  must  be  obeyed, 
by  the  rejection  of  an  act  unwarranted  by 
and  inconsistent  with  it,  or  you  must  obey 
an  act  founded  on  an  authority  not  given  by 
the  people,  and  to  which,  therefore,  the 
people  owe  no  obedience." 

This  was  the  doctrine  distinctly  sup- 
ported by  seventeen  out  of  twenty-five  of 
those  who  took  an  active  part  in  the  pro- 
ceedings of  the  Constitutional  Convention, 
and  it  was  opposed  by  only  five  persons.  In 
Article  VI  of  the  Constitution  it  is  ex- 
pressly provided  that 

248 


THE    CITIZEN    SUBJECT    TO    LAW 

This  Constitution,  and  the  laws  of 
the  United  States  which  shall  be  made 
in  pursuance  thereof  .  .  .  shall  be  the 
supreme  law  of  the  land;  and  the 
judges  in  every  State  shall  be  bound 
thereby,  anything  in  the  constitution 
or  laws  of  any  State  to  the  contrary 
notwithstanding. 

Section  2  of  Article  III  further  provides 
that 

The  judicial  power  shall  extend  to 
all  cases,  in  law  and  equity,  arising 
under  this  Constitution;  the  laws  of 
the  United  States,  and  treaties  made, 
or  which  shall  be  made,  under  their 
authority. 

If  these  provisions  do  not  specifically 
name  the  Supreme  Court,  "the  judicial 
power"  evidently  refers  to  it,  and  it  is  cer- 
tain that  its  authority  was  not  intended  to 
be  less  than  that  granted  explicitly  to  the 
State  courts.  It  is  worthy  of  note  that  Luth- 

249 


THE    PEOPLE'S    GOVERNMENT 

er  Martin,  who  proposed  the  original  form  of 
Article  VI,  but  objected  to  its  final  form, 
wrote  to  his  fellow-citizens  of  Maryland: 
"Whether,  therefore,  any  laws  or  regula- 
tions of  the  Congress  .  .  .  are  contrary  to 
or  not  warranted  by  the  Constitution  rests 
only  with  the  judges  who  are  appointed  by 
Congress  to  determine,  by  whose  determina- 
tion every  State  must  be  bound."  James 
Wilson,  of  Pennsylvania,  was  if  possible, 
even  more  explicit.  "If,"  he  says,  "a  law 
should  be  made  inconsistent  with  the  powers 
vested  by  this  instrument  [the  Constitu- 
tion] in  Congress,  the  judges,  as  a  conse- 
quence of  their  independence  and  the  par- 
ticular powers  of  government  being  defined 
[in  the  Constitution],  will  declare  such  law 
to  be  null  and  void;  for  the  power  of 
the  Constitution  predominates.  Anything, 
therefore,  that  shall  be  enacted  by  Congress 
contrary  thereto  will  not  have  the  force  of 
law."  Hamilton  and  Ellsworth  expressed 
250 


THE    CITIZEN    SUBJECT    TO    LAW 

the  same  opinion  in  terms  equally  unequiv- 
ocal and  in  more  extended  form. 

ALLEGED   USURPATION   OF   THE   SUPREME 
COURT 

This  evidence  should  be  sufficient  to  es- 
tablish beyond  question  the  authority  of  the 
Supreme  Court  to  pass  upon  the  constitu- 
tionality of  legislative  acts,  and  it  should 
conclusively  dispose  of  the  insinuation  that 
it  was  by  the  interpretation  of  the  Consti- 
tution given  by  John  Marshall,  as  Chief 
Justice  of  the  United  States,  that  power 
was  usurped  by  the  decision  of  the  Court 
itself;  but  the  accusation  is  further  rebutted 
by  the  Judiciary  Act  of  1789,  practically 
coeval  with  the  Constitution,  and  approved 
by  President  Washington,  who  had  pre- 
sided over  the  Constitutional  Convention. 
That  Act  explicitly  recognized  the  right  of 
a  State  court  to  declare  void  laws  of  a  State 
as  well  as  laws  of  the  United  States,  subject 
to  an  appeal  to  the  Supreme  Court;  which 

251 


THE    PEOPLE'S    GOVERNMENT 

therefore  possesses  the  right  to  declare  any 
law  invalid,  if  it  be  contradictory  to  the 
provisions  of  the  Constitution.  It  was,  in- 
deed, Chief  Justice  Marshall,  who,  by  the 
irrefutable  character  of  his  reasoning,  set  at 
rest  the  question  regarding  the  authority  of 
the  courts  to  declare  a  law  of  Congress  un- 
constitutional; but,  in  1795,  ejght  years  be- 
fore the  celebrated  decision  in  the  case  of 
Marbury  vs.  Madison,  to  which  the  "usur- 
pation" is  credited,  Justice  Paterson,  in  the 
Circuit  Court  of  the  United  States,  deliv- 
ered a  charge  to  a  jury  in  which  he  ex- 
plicitly stated  the  supremacy  of  the  Consti- 
tution and  the  authority  of  the  judiciary  in 
the  United  States,  as  contrasted  with  the 
omnipotence  of  Parliament  and  the  absence 
of  control  over  its  acts  by  the  judiciary  in 
Great  Britain.  "The  power  of  Parlia- 
ment," he  says,  "is  absolute  and  transcend- 
ent; it  is  omnipotent  in  the  scale  of  political 
existence.  .  .  .  The  validity  of  an  Act  of 

252 


Parliament  cannot  be  drawn  into  question 
by  the  judicial  department;  it  cannot  be 
disputed,  and  must  be  obeyed.  ...  In 
America  the  case  is  entirely  different. 
Every  State  in  the  Union  has  its  constitu- 
tion reduced  to  written  exactitude  and  pre- 
cision. What  is  a  constitution?  It  is  the 
form  of  government,  delineated  by  the 
mighty  hand  of  the  people,  in  which  certain 
first  principles  are  established.  The  Con- 
stitution is  certain  and  fixed;  it  contains  the 
permanent  will  of  the  people,  and  is  the 
supreme  law  of  the  land.  .  .  .  What  are 
legislatures?  Creatures  of  the  Constitu- 
tion; they  owe  their  existence  to  the  Con- 
stitution; it  is  their  commission;  and,  there- 
fore, all  their  acts  must  be  conformable  to  it, 
or  else  they  will  be  void.  .  .  .  Whatever  may 
be  the  case  in  other  countries,  yet  in  this 
there  can  be  no  doubt  that  every  Act  of  the 
Legislature  repugnant  to  the  Constitution 
is  absolutely  void." 

253 


THE    PEOPLE'S    GOVERNMENT 

With  regard  to  the  duty  and  authority 
of  the  Court,  the  learned  Justice  is  equally 
clear  and  equally  emphatic.  "If  a  legis- 
lative act,"  he  says,  "impugns  a  constitu- 
tional principle,  the  former  must  give  way, 
and  be  rejected  on  the  score  of  repugnance. 
I  hold  it  to  be  a  position  equally  clear  and 
sound,  that,  in  such  a  case,*  it  will  be  the 
duty  of  the  Court  to  adhere  to  the  Consti- 
tution, and  to  declare  the  act  null  and  void. 
The  Constitution  is  the  basis  of  legislative 
authority;  it  lies  at  the  foundation  of  all 
law,  and  is  a  rule  and  commission  by  which 
both  legislator  and  judges  are  to  proceed. 
.  .  .  The  judiciary  in  this  country  is  not  a 
subordinate,  but  a  coordinate,  branch  of  the 
government." 

The  extent  of  the  authority  accorded  by 
the  Constitution  to  the  Supreme  Court  of 
the  United  States  has  at  times  been  hotly 
debated,  especially  when  the  decisions  ren- 
dered by  it  have  aroused  against  them  op- 

254 


THE    CITIZEN    SUBJECT    TO    LAW 

posing  interests ;  but  it  may  be  said  without 
fear  of  refutation  that  every  statement  made 
in  the  passages  just  cited  has  been  over- 
whelmingly sustained  by  public  opinion  in 
this  country  for  more  than  a  hundred  years. 
Recently  the  debate  has  been  reopened,  and 
Chief  Justice  Marshall  has  been  accused  of 
being  the  originator  of  this  doctrine ;  which, 
as  stated  by  him  in  the  case  of  Marbury  vs. 
Madison,  it  is  represented,  was  nothing 
less  than  usurpation  of  authority  by  the 
Court  itself.  Nothing  could  more  clearly 
indicate  opposition,  not  only  to  the  Consti- 
tution itself,  but  to  the  primary  purpose  of 
a  constitution,  than  such  an  accusation;  for, 
if  objection  to  the  language  of  the  Chief 
Justice  has  any  significance  whatever,  it 
must  be  based  on  the  distinction  he  draws 
between  a  "superior  paramount  law"  and  an 
"ordinary  legislative  act."  "The  Constitu- 
tion," he  writes,  "is  either  a  superior  para- 
mount law  ...  or  it  is  on  a  level  with 

255 


THE    PEOPLE'S    GOVERNMENT 

ordinary  legislative  acts,  and  like  other  acts 
is  alterable  when  the  legislature  shall  please 
to  alter  it."  If,  he  argues,  the  Constitution 
is  a  superior  and  paramount  law,  then  it 
must  be  obeyed;  and  whatever  is  contrary 
to  it  is  legally  void.  If,  on  the  other  hand, 
the  Constitution  is  alterable  at  the  will  of 
the  legislature,  "written  constitutions  are 
absurd  attempts  on  the  part  of  the  people 
to  limit  a  power  in  its  own  nature  illimit- 
able." "Certainly,"  he  concludes,  "all  those 
who  have  framed  written  constitutions  con- 
templated them  as  forming  the  fundamental 
and  paramount  law  of  the  nation ;  and,  con- 
sequently, the  theory  of  every  such  govern- 
ment must  be,  that  an  act  of  the  legislature 
repugnant  to  the  Constitution  is  void.  .  .  . 
It  is  emphatically  the  province  and  duty  of 
the  judicial  department  to  say  what  the  law 
is.  ...  If  two  laws  conflict  with  each  other, 
the  courts  must  decide  on  the  operation  of 
each." 

256 


THE    CITIZEN    SUBJECT   TO   LAW 

THE   ALLEGED   "JUDICIAL   OLIGARCHY" 

Obviously,  the  authority  of  a  court  to  de- 
cide what  the  law  is,  even  to  the  extent  of 
declaring  null  and  void  the  acts  of  a  legis- 
lative body,  places  in  the  judiciary  a  power 
that  might  conceivably  be  made  the  subject 
of  abuse.  It  is,  therefore,  important  to  note 
that  the  same  high  authority  who  is  held 
responsible  for  judicially  maintaining  the 
duty  of  the  Supreme  Court  of  the  United 
States  to  determine  the  constitutionality  of 
laws  has  also,  in  the  strongest  terms,  empha- 
sized the  responsibility  of  this  authoritative 
body.  "The  question,"  says  Chief  Justice 
Marshall,  "whether  a  law  be  void  for  its 
repugnancy  to  the  Constitution  is  at  times 
a  question  of  much  delicacy,  which  ought 
seldom,  if  ever,  to  be  decided  in  the  affirma- 
tive in  a  doubtful  case.  .  .  .  The  opposition 
between  the  Constitution  and  the  law  should 
be  such  that  the  judge  feels  a  clear  and 

18  257 


THE    PEOPLE'S    GOVERNMENT 


strong  conviction  of  their  incompatibility 
with  each  other." 

This  is  a  sound  principle,  and  a  violation 
of  it  in  the  form  of  a  strained  decision  is, 
undoubtedly,  itself  an  offense  against  the 
Constitution.  That  there  have  been  occa- 
sional instances  of  it  may,  however,  be  freely 
admitted  without  warranting  an  assault 
upon  the  judiciary  as  such,  and  certainly 
without  affording  the  slightest  ground  either 
for  revising  or  for  facilitating  in  general 
the  future  amendment  of  the  Constitution. 

When  the  worst  has  been  said — and,  un- 
doubtedly, there  is  something  to  be  said — 
against  certain  judicial  decisions,  especially 
against  those  which  have  been  handed  down 
by  a  bare  majority  of  the  Court  against  the 
exceptions  taken  by  a  minority,  there  is  no 
just  ground  for  speaking  of  a  "judicial 
oligarchy";  as  if  the  judges  were,  as  a  class, 
to  be  condemned  as  arbitrary  rulers,  over- 
riding in  their  judicial  capacity  the  desires 

258 


THE    CITIZEN    SUBJECT    TO    LAW 

of  the  people  as  expressed  by  legislative 
acts.  Without  a  doubt,  if  the  whole  body 
of  legislative  enactments  and  the  whole  body 
of  judicial  decisions  were  taken  into  account, 
it  would  be  found  that  the  decisions  of  the 
judges  would  approach  much  nearer  to  the 
public  opinion  of  the  time  in  which  they  were 
rendered  as  to  what  is  just  and  right  than 
the  acts  of  legislatures  they  have  annulled. 

In  this  connection  it  must  be  borne  in 
mind,  as  Mr.  Lincoln  pointed  out  in  regard 
to  the  Dred  Scott  decision,  that  judicial 
judgments  relate  only  to  specific  cases,  and 
that  such  decisions  may  be  rectified  when 
they  are  demonstrably  wrong.  In  no  case 
do  they  irrevocably  determine  political  prin- 
ciples in  opposition  to  the  verdict  of  delib- 
erate public  opinion.  In  truth — while  cer- 
tain legislative  acts,  if  not  judicially  set  aside 
as  in  conflict  with  the  fundamental  law, 
may  lay  the  foundation  for  extended  and 
irreparable  encroachments  upon  private 

259 


THE    PEOPLE'S    GOVERNMENT 

rights,  including  the  most  infamous  extor- 
tions— judicial  decisions  are  mainly  merely 
suspensory  in  their  effect,  simply  declaring 
that  in  a  particular  case  an  act  which  the 
Court,  for  the  reasons  which  it  states,  agrees 
to  consider  wrong  may  not  be  performed. 
If  afterward  these  reasons  are  found  to  be 
erroneous,  there  is  still  room  £or  a  different 
interpretation  of  the  law  when  such  a  dif- 
ferent interpretation  can  be  justified. 

There  is,  therefore,  under  our  system,  no 
reasonable  ground  for  a  general  assault  upon 
the  judiciary.  Errors  may  have  been  com- 
mitted, and  judges  may  sometimes  have 
been  influenced  by  considerations  which 
have  perverted  their  judgment ;  but,  in  spite 
of  these  aberrations,  the  law  as  judicially 
interpreted  has  usually  been  sanctioned  by 
mature  public  opinion.  Certainly,  it  would 
not  have  been  improved  by  the  influence  of 
immature  public  opinion.  There  is  no  doubt, 
in  the  domain  of  judicial  decision,  large  op- 

260 


THE    CITIZEN    SUBJECT    TO    LAW 

portunity  for  ex  parte  criticism.  If  the 
defeated  contestant  could  always  carry  his 
case  before  the  general  public  without  hav- 
ing to  meet  his  adversary,  he  would,  un- 
doubtedly, in  many  instances  obtain  a  re- 
versal of  the  decision;  but  appeal  from  an 
instructed  to  an  uninstructed  tribunal  would 
offer  no  discernible  advantage  to  the  cause 
of  justice.  The  public  has,  perhaps,  a  suf- 
ficient amount  of  spare  time  to  indulge  in 
sympathy  for  the  apparently  oppressed,  but 
hardly  enough  to  constitute  itself  a  superior 
court  of  justice. 

THE     VALUE     OF     THE     JUDICIAL     FUNCTION 

While  it  is  of  the  highest  importance  to 
neglect  no  means  of  securing  and  maintain- 
ing the  independence,  the  impartiality,  and 
the  responsibility  of  our  judiciary,  the  really 
important  matter  is,  that  we  should  not  fail 
to  appreciate  the  value  of  the  judicial  func- 

261 


THE    PEOPLE'S    GOVERNMENT 

tion.  If  in  any  case  human  perfection  could 
be  assumed,  we  might,  perhaps,  improve  our 
system  of  government  by  selecting  the  per- 
fect man  and  charging  him  with  all  the 
duties  and  responsibilities  of  the  State.  But, 
until  the  perfect  man  is  found,  we  must  be 
reconciled  to  the  necessity  of  maintaining  a 
system  which  most  nearly  approximates  per- 
fection, even  though  it  fall  far  short  of  it. 

The  fundamental  problem  of  government 
is,  and  has  always  been,  to  obtain  for  each 
individual  full  security  for  his  inherent  rights 
against  the  aggression  of  the  stronger.  In 
brief,  the  problem  is,  to  substitute  for  vio- 
lent and  forcible  compulsion  just  judg- 
ments under  equal  laws. 

The  solution  of  this  problem  proposed  by 
the  founders  of  our  political  system  was,  as 
we  have  seen :  ( 1 )  the  creation  of  a  form  of 
government  in  which  no  public  officer  should 
be  omnipotent,  in  which  the  powers  of  gov- 
ernment should  be  divided  and  distributed, 
262 


THE    CITIZEN    SUBJECT    TO    LAW 

and  in  which  definite  limits  should  be  set 
even  to  the  power  of  the  State  as  a  whole; 
and  (2)  the  explicit  statement  of  certain 
general  principles  of  justice,  in  the  equal 
interest  of  all,  which  under  all  circumstances 
would  have  to  be  respected  by  all  classes  and 
all  sections,  no  matter  how  powerful  in 
wealth,  in  numbers,  or  in  any  other  attribute 
of  power  and  influence,  they  might  be. 

Government,  according  to  this  conception 
of  it,  was  no  longer  to  consist  in  the  exercise 
of  power  by  those  who  for  any  reason  might 
happen  to  possess  it,  but  in  the  uniform  ap- 
plication of  principles  freely  accepted  as 
rules  of  conduct. 

Inevitably,  as  human  nature  is  constituted, 
taking  into  account  the  unconscious  as  well 
as  the  conscious  springs  of  action,  and  judg- 
ing by  all  the  experience  of  the  past,  it  was 
distinctly  foreseen  that  there  would  be  in 
the  community  conflicts  of  interest  and  con- 
flicts of  opinion  which,  if  unrestrained,  would 
263 


THE    PEOPLE'S    GOVERNMENT 

lead  to  violence.  To  prevent  that  conse- 
quence, it  would  be  necessary  that  these  con- 
flicts be  adjudicated  before  the  bar  of  reason, 
as  reason  was  embodied  in  the  law.  The 
balance-wheel  of  the  entire  system,  as  con- 
ceived by  its  founders,  was,  therefore,  the 
judiciary;  to  be  composed  of  judges  duly 
set  apart  and  provided  for  in  such  a  manner 
as  to  liberate  them  from  the  necessities,  the 
interests,  the  prejudices,  and  the  ambitions 
which  might  actuate  other  men,  and  thus 
render  them  impartial  servants  of  the  State, 
personally  neutral  as  regards  the  contestants 
appealing  to  them  for  justice,  and  animated 
by  no  motive  except  the  sentiments  of  honor 
and  responsibility. 

Such,  then,  in  its  nature  and  intention,  is 
the  judicial  function,  the  adjudication  of 
differences  in  the  light  of  the  law.  Imper- 
fect in  performance  it  may  always  be,  and 
probably  will  be,  so  long  as  human  nature 
remains  imperfect;  but,  if  justice,  and  not 

264 


THE    CITIZEN    SUBJECT    TO    LAW 

advantage,  is  to  be  considered  the  ideal 
toward  which  the  State  is  to  approximate, 
progress  will  consist,  not  in  unsettling  the 
judiciary,  but  in  rendering  it  more  expert, 
more  independent  of  popular  agitation,  and 
more  conscious  of  its  high  responsibility. 

THE     DOCTRINE     OF     "JUDICIAL     SUPREMACY" 

If  there  must  be  in  human  government 
any  authority  deserving  to  be  characterized 
as  "supreme,"  it  is,  assuredly,  that  which  is 
charged  with  determining  what,  by  the 
agreement  of  the  people,  constitutes  the  law. 

The  Supreme  Court  of  the  United  States, 
writes  Mr.  Bryce,  is  "the  guarantee  of  the 
minority,  who,  when  threatened  by  the  im- 
patient vehemence  of  a  majority,  can  appeal 
to  this  permanent  law,  finding  the  inter- 
preter and  enforcer  thereof  in  a  court  set 
high  above  the  assaults  of  faction." 

There  is  in  this  comment  no  invidious 

265 


THE    PEOPLE'S    GOVERNMENT 

distinction  between  the  "majority"  and  the 
"minority,"  as  if  the  greater  number  were 
always  wrong  and  the  lesser  number  always 
right.  Its  true  meaning  is,  that  one  man, 
standing  alone  if  the  case  may  be,  and  op- 
posed by  powerful  interests  that  otherwise 
might  completely  crush  him,  may  appeal  to 
a  tribunal  which,  despite  these  interests, 
whatever  they  are  and  whatever  clamor  they 
may  raise,  may  demand,  even  against  the 
combined  opposition  of  the  government  it- 
self, that  justice  be  accorded  him;  and,  if 
his  cause  be  just,  neither  President  nor  Con- 
gress, though  commanding  armies  and 
navies,  can  wring  from  him  one  of  his  in- 
herent rights. 

It  is  readily  comprehensible,  therefore, 
that  the  fathers  of  the  Constitution  believed 
they  were  inaugurating  a  new  era  in  the 
history  of  the  world.  For  the  first  time,  they 
were,  in  reality,  subjecting  every  branch 
and  organ  of  government  to  the  supremacy 

266 


THE    CITIZEN    SUBJECT    TO    LAW 

of  law  as  interpreted  by  impartial  judges. 
In  this  unique  achievement  was  accomplished 
all  that  past  ages  had  striven  to  obtain — the 
basing  of  authority  on  fixed  principles  of 
justice  rather  than  upon  the  will  of  an  abso- 
lute sovereign ;  the  elimination  of  brute  force 
as  an  element  of  government;  and  the  pro- 
tection of  individual  rights  against  the  en- 
croachments of  individuals,  of  powerful  in- 
terests, and  even  of  the  State  itself. 

The  passing  years  only  strengthened  the 
conviction  of  the  founders  of  the  nation,  and 
Daniel  Webster,  the  great  expositor  of  the 
Constitution,  voiced  the  opinion  of  his  time 
when  he  said:  "No  conviction  is  deeper  in 
my  mind  than  that  the  maintenance  of  the 
judicial  power  is  essential  and  indispensable 
to  the  very  being  of  this  government.  .  .  . 
I  am  deeply  sensible,  too,  and,  as  I  think, 
every  man  must  be  whose  eyes  have  been 
open  to  what  has  passed  around  him  for  the 
last  twenty  years,  that  the  judicial  power  is 

267 


THE    PEOPLE'S    GOVERNMENT 

the  protecting  power  of  the  whole  govern- 
ment." 

In  this  respect,  the  system  adopted  by  the 
United  States  is  far  in  advance  of  any  other. 
From  many  of  the  European  governments 
we  have,  no  doubt,  much  to  learn  as  regards 
most  matters  of  administration,  and  espe- 
cially in  respect  to  the  employment  of  trained 
experts  permanently  retained  in  the  service ; 
but  no  other  country  in  the  world  possesses 
the  guarantees  of  individual  liberty  and  in- 
herent rights  that  are  accorded  by  the  Con- 
stitution of  the  United  States.  Many  other 
nations  have  borrowed  much  from  the  Amer- 
ican Republic,  in  particular  a  written  con- 
stitution ;  but  none  of  them  has  embodied  in 
its  form  of  government  the  original  feature 
which  chiefly  characterizes  the  American 
conception,  namely,  the  supremacy  of  fun- 
damental law  over  extemporaneous  legisla- 
tion, with  the  judicial  guarantee  afforded  by 
the  authority  of  the  State  and  Federal  courts. 
268 


THE    CITIZEN    SUBJECT    TO    LAW 

Praise  for  our  system  has,  nevertheless,  not 
been  wanting.  Professor  Dicey,  the  great- 
est, perhaps,  of  English  writers  on  the 
subject,  though  a  strong  advocate  of  the 
British  system,  has  expressed  the  conviction 
that  the  British  Empire  would  be  benefited 
if  it  possessed  an  analogue  of  our  Supreme 
Court;  and  declares,  that  the  "glory  of  the 
United  States  is,  to  have  devised  or  adopted 
arrangements  under  which  the  Constitution 
became  in  reality  the  supreme  law  of  the 
land." 

OBSTACLES   TO  JUDICIAL   SUPREMACY 

Other  nations,  owing  either  to  the  perfec- 
tion of  their  administration,  the  influence  of 
their  traditions,  or  the  continuity  of  their 
institutions,  or  all  of  these  combined,  have 
dispensed  with  the  distinctive  features  of 
the  American  Constitution;  but  the  need  of 
the  elements  characteristic  of  the  American 
system  has  been  distinctly  felt  by  most  of 

269 


THE    PEOPLE'S    GOVERNMENT 

them.  This  is  especially  true  of  their  inter- 
national relations.  While  the  forty-eight 
States  of  the  American  Union,  in  spite  of 
wide  diversities,  constitute  a  unit  in  which  all 
parts  are  subject  to  one  judicial  control,  the 
States  of  Europe,  large  and  small,  are,  for 
the  most  part,  from  a  judicial  point  of  view, 
entirely  separate  entities,  with,  no  effective 
means  of  obtaining  a  juridical  solution  of 
the  differences  arising  between  them. 

The  efforts  put  forth  in  the  international 
conferences  at  The  Hague  to  develop  at 
least  an  outline  of  written  law  for  the  con- 
duct of  sovereign  States,  and  to  organize 
an  international  tribunal  of  justice  for  the 
settlement  of  their  disputes,  attest  the  in- 
terest felt  by  several  governments  in  an 
extension  of  law,  in  the  sense  of  mutual  obli- 
gation, even  over  wholly  independent  sover- 
eign powers;  but  at  the  same  time  reveal 
the  nature  of  the  obstacles  to  that  achieve- 
ment. 

270 


THE    CITIZEN    SUBJECT    TO    LAW 

Those  obstacles  are :  ( 1 )  the  indisposition 
of  certain  States,  cherishing  the  idea  of 
absolute  sovereignty,  to  accept  the  principle 
of  mutual  obligation  as  the  basis  of  the  law 
of  nations;  and  (2)  their  unwillingness  to 
submit  the  differences  between  them  to  any 
kind  of  judicial  decision. 

If  we  were  to  look  to  the  example  of  these 
nations  alone  for  the  principles  of  human 
government,  we  should  inevitably  draw  the 
conclusion  that  force  is  still  the  essential 
basis  of  the  State,  and  that  it  is  the  pre- 
rogative of  the  stronger  to  dictate  the  law. 
It  seems  at  times  as  if  this  is  the  final  con- 
clusion which  history  compels  us  to  reach; 
and  that  the  destiny  of  man  is,  and  will 
always  be,  to  yield  submission  to  the  pre- 
ponderance of  purely  arbitrary  power,  in 
such  forms  as  it  may  be  able  to  assume — 
now  in  the  garb  of  absolute  despotism,  now 
in  the  shape  of  overwhelming  national  arma- 
ments, now  in  the  guise  of  State  control 

£71 


THE    PEOPLE'S    GOVERNMENT 

through  financial  influence,  now  through  the 
demand  of  potential  classes  in  the  community 
for  obedience  to  their  will,  and  now  through 
popular  misconceptions  of  equity  promoted 
and  rendered  influential  through  the  sophis- 
tries of  ambitious  disturbers  of  social  order. 


THE     DANGER     OF     RECURRENT11  ABSOLUTISM 

The  important  matter  for  the  citizen  to 
comprehend  and  constantly  recall  is  that  a 
battle  of  ideas  is  going  on  in  which,  con- 
sciously or  unconsciously,  he  must  take  a 
part.  Passivity  and  inertness  simply  class 
him  with  the  party  attached  to  absolutism; 
for  the  reason,  that,  under  conditions  of 
passivity  and  inertness,  absolutism,  in  some 
form,  inevitably  resumes  its  sway.  The 
moment  men  cease  to  appreciate  their  rights 
and  liberties,  the  unconscious  process  of 
political  decay  proceeds;  for,  as  we  have 
previously  seen,  there  exists  no  natural  and 

272 


inherent  law  of  human  progress.  If  not 
persistently  resisted,  imperialism,  in  one  or 
another  of  its  many  disguises,  is  certain  to 
return.  The  law  of  the  natural  world  is  the 
survival  and  the  triumph  of  the  strong.  It 
is  necessary,  therefore,  to  guard  against 
arbitrary  power,  under  whatever  mask  it 
may  appear.  There  is  a  tendency,  one  may 
say  even  a  fatality,  in  those  who  possess  it 
to  make  it  the  source  of  law;  and  this  it  has 
always  been  until  intelligence  found  a  way 
to  restrain  it.  Left  to  the  free  play  of 
natural  appetites,  passions,  and  ambitions, 
uncontrolled  by  respect  for  the  authority  of 
law  as  mutual  obligation — without  regard 
to  nominal  forms  of  government,  whether 
monarchical,  oligarchic,  or  democratic — the 
State  has  always  become  absolute,  inherent 
personal  rights  have  been  denied  or  over- 
ridden, and  the  will  of  the  stronger  has  be- 
come the  rule. 

The  only  safe  refuge  from  despotism  is 

19  273 


THE    PEOPLE'S    GOVERNMENT 

the  shelter  created  by  human  intelligence, 
applying  to  the  problems  of  government  the 
results  of  experience.  The  whole  of  civiliza- 
tion depends  not  merely  upon  obedience  to 
law,  but  upon  the  renunciation  by  each  in- 
dividual of  the  temptation  to  make  his  own 
will  the  source  of  law.  And  this  is  true 
also  of  governments,  in  their  relation  to  one 
another  and  to  the  citizen.  It  is  certain 
that  without  power  to  punish  disobedience 
to  just  laws  and  to  repress  violence,  the 
State  would  be  impotent  to  secure  the  rights 
and  liberties  of  which  it  is  the  guarantor; 
and  that  measure  of  force,  together  with 
the  means  of  defense  against  external  ag- 
gression, must,  therefore,  be  accorded  to  the 
State.  But  it  is  only  when  a  State  itself 
submits  to  law,  irrespective  of  the  extent  of 
its  power,  that  it  can  rightly  claim  the  loyal 
allegiance  of  its  citizens. 

For  a  system  of  government  which,  in  the 
very  charter  of  its  existence,  has  voluntarily 

274 


THE    CITIZEN    SUBJECT    TO    LAW 

made  this  renunciation  of  arbitrary  power, 
and  which  faithfully  respects  its  pledges,  a 
right-minded  citizen  may  well  entertain  a 
sentiment  of  unqualified  devotion.  Such  a 
birthright  is  not  to  be  lightly  regarded ;  but 
it  is  more  than  a  birthright,  it  is  a  sacred 
trust.  To  maintain  it  may  require  no  dan- 
gerous exposure  and  no  cruel  sacrifice,  but 
only  vigilant  activity ;  but,  if  the  call  should 
come,  it  would  be  the  duty  of  every  citizen 
to  offer  freely  upon  the  altar  of  its  defense 
his  possessions,  his  person,  and  his  life. 


INDEX 


Absolutism,  no  place  for,  in 

our  system,  129,  130 
danger  of  recurrent,  272- 

275 

royal,  36-38 
"Alcoran  de  Louis  XIV" 

on  Machiavelli,  29 
Althusius,     Johannes,    de- 
clared   sovereignty    a 
right  inherent  in  the 
body  politic,  69,  70 
Ambassador,    meaning    of 

salute  to,  12 
American  Revolution,  the, 

106, 107 

character  of,  235-238 
Arbitrary  power  must  be 
guarded   against,  273- 
274 
Assimilating  power  of  the 

State,  13-15 

Austin,  John,  philosophy  of 
jurisprudence  of,  97- 
100 

dogmatic  denial  of  inter- 
national law  by,  99 
Authority,  absolute,  neither 
in  the  individual  nor  in 
numbers,  115-117 


Authority,  rightful,  ability 
of,  to  compel  obedi- 
ence, 6 

true  principle  of,  in 
nature  of  being  to  be 
ruled,  44 

seat  of  public,  61-65 
question  of,  117-120 
Authority    of    the    State, 
existence  of,  before  a 
theory   of   its   nature, 
64 

impersonality  of,  80-84 
since  it  resides  in  reason 
as  objective  and  im- 
personal, 81,  82 
true  nature  of,  76-79 

Barbarossa  and  his  cour- 
tiers, Bulgarus  and 
Martinus,  68 

Bodin,  Jean,  political  phi- 
losophy of,  30-34 
defect  in   conception  of 
sovereignty   of,   32- 
33 

Body  politic  as  a  moral  or- 
ganism, sovereignty  in- 
herent in  the,  70,  71 


277 


INDEX 


Bossuet  on  the  divine  right 
of  kings,  38,  39 

Bourbon  dynasty,  the,  and 
"divine  right  of  kings," 
39 

Brissot  and  war  on  kings, 
42 

Bryce,  James,  on  the  Su- 
preme Court,  265 

Byzantines,  reception  of 
ambassador  by  the,  12 

Capital  and  labor,  relations 
of,  154-157 

Caste  established,  6 

Catherine  de  Medici  intro- 
duced Machiavelli  into 
France,  28 

Charles  V,  Emperor,  close 
student  of  Machiavelli, 
28 

Christina,  Queen  of  Sweden, 
annotated  a  copy  of 
Machiavelli's  "Prince," 
28 

Church  and  State,  15-19 

Citizen,  as  law-maker,  181- 

229 

as  subject  to  law,   233- 
275 

Civilization,  the  totality  of 
human  culture  under 
the  State,  14 

Class  interests  no  basis  for 
speciallegal  rights,  160- 
161 

Command,  power  of,  per- 
manent possession  of 
the  chief,  6 


Community  life,  primitive, 

3-5 

conservatism  in,  50 
not  self-conscious,  7,  8 
order  a  necessity  in,  25 
relations  of  men  in,  be- 
yond control,  47- 
48 

slow    development    of 
social     conscious- 
ness in,  48 
Community    of    property. 

See  Property 
Conflict    between    religion 

and  the  State,  17-19 
Consciousness,  reflective  so- 
cial, not  equally  pos- 
sessed, 49 

slow  evolution  of,  48 
Constitution,  Federal,  a  bar 
to  revolution,  241-245 
a  law  for  legislation,  170 
as  a  guarantee  of  rights, 

169-171,  186-191 
attacks  upon,  200-204 
Chief    Justice    Marshall 
on,  255-256, 257-258 
effect  of  guarantees  of, 

198-200 
extension   of   guarantees 

of,  195^200 
James  Madison  on,  174- 

177 
nature  of  opposition  to, 

204-207 

opposition  to,  171-174 
purpose  of,  and  first  ten 
amendments,     193- 
195 


278 


INDEX 


Constitution,  13th  and  14th 
amendments  to,  196- 
197 

Constitutionalism,  conflict 
of,  with  imperialism, 
214-217 

principles  and  person- 
alities in,  217-220 
Consumer  and  producer,  re- 
lations of,  158-161 
Contract,  no  evidence  of,  in 
early  evolution  of  the 
State,  7 
Cujus  regio,  ejus  religio,  37 

Danton  and  the  Commune, 

42 

Declaration  of  the  Rights 
of    Man    and    of    the 
Citizen,  113-114 
only  a  declamation  against 

royalism,  238 

Democracy,  based  on  mu- 
tuality   of    obligation, 
164-165 
danger  of  authoritative, 

220-223 

government  by  official 
oligarchy,  223- 
229 

may  be  imperial  and  un- 
constitutional, 215- 
217 

Dicey,  Professor,  on  the 
American  Constitution 
as  the  supreme  law  of 
the  land,  269 

Divine  right  of  kings,  35-39 
theory  of,  65-68 


Divine  right  of  kings,  re- 
jected by  John  Locke 
and  Jean  Jandun,  66-67 

Divine  will,  objective  and 
impersonal,  as  being 
no  quality  of  the  hu- 
man individual,  85 

Dred  Scott  decision,  Lin- 
coln on  the,  181-186 

English  Parliament,  omni- 
potence of  the,  252-253 

Enterprises,  large,  drastic 
laws  against,  159-161 

Equalization,  laws  of,  161- 
162 

Faguet,     Emile,      on    the 
French        Revolution, 
108-109 
Force,  history  the  story  of 

triumphant,  9-12 
insufficient  to  inspire  re- 
spect, 60 
preeminence   of,    in   the 

State,  21-24 
seems  still  the  basis  of 

the  State,  271-272 
the   primal   law   of   the 

State,  8 

Fortunes,  excessively  great, 
least  likely  to  be  af- 
fected by  radical  legis- 
lation, 209 
Fouche",  on  the  omnipotence 

of  the  people,  112 
France,  under  eleven  con- 
stitutions since  the  Rev- 
olution, 239-241 


279 


INDEX 


Frederick  II,  extorted  the 
decision  that  the  Em- 
peror is  lex  animata  in 
terris,  67-68 
Frederick    the    Great,    on 

Machiavelli,  29-30 
French     Revolution,     the, 
against  royal    author- 
ity, 238 
character    of,     107-113, 

238-241 

"supreme  power"  hi  the 
hands  of  the  people 
in,  40-43 
Fundamental  law,  necessity 

of  a,  164-177 
substantial  value  of,  189- 

190 

supremacy   of,   over   ex- 
temporaneous   legis- 
lation, 268 
surcharging  of,  191-193 

Government,  by  official  oli- 
garchy, 223-229 
fundamental  problem  of, 

262-265 
Governments,  all  types  of, 

tend  to  tyranny,  59 
composition  and  form  of, 

19-21 

Group  ruled  by  will  of  the 
stronger,  5 

Hague,  The,  interest  of 
governments  in  con- 
ferences at,  270 

Henry  III,  a  student  of 
Machiavelli,  28 


Henry  IV,  a  student  of 
Machiavelli,  28 

Hero  worship,  61-63 

History,  superior  force  the 
key  of,  9-12 

Human  activities,  largely 
product  of  unconscious 
causes,  47^18 

Human  mind,  a  construc- 
tive power,  59 

Human  personality,  en- 
titled to  consideration, 
universally  recognized, 
138-14.2 

Imperium,  development  of 

conception  of,  93-94 
Jean  Bodin  on,  31 

Individual  absorbed  in  per- 
sonal needs,  49 

Industrial  freedom,  right 
to,  natural  and  inher- 
ent, 147-148 

Initiative  and  referendum, 
207,  211-213 

Instinct  and  habit  domi- 
nate, 49 

Instincts,  in  primitive  hu- 
man life,  3 

primary  social,  most  per- 
sistent, 4-5 

International  law,  John  Aus- 
tin's denial  of,  97-99 

International  tribunal  of 
justice,  obstacles  to  an, 
269-272 

Iredell,  James,  on  the  Con- 
stitutional provisions 
for  a  judiciary,  247-250 


280 


INDEX 


Jandun,    Jean,    on    sover- 
eignty conferred  by  the 
people,  66-67 
Judicial   authority,   attack 

on,  246-251 

Webster,  Daniel,  on  the 
judicial  power,  267- 
268 
Judicial  function,  value  of 

the,  261-265 

Judicial  oligarchy,  the  al- 
leged, 257-260 
Judicial    supremacy,    doc- 
trine of,  265-269 
obstacles  to,  269-272 
Justinian    on    will   of   the 
prince  and  sovereignty 
of  the  people,  67 

Kings.    See  Divine  right  of 

kings 
Knight,    from    armed,    to 

King,  50-54 

Labor  and  capital,  relations 

of,  154-157 
Lamoignon,  on  the  divine 

right  of  kings,  38 
Law,  as  a  mutual  obliga- 
tion, 135^177 
as  a  sovereign  decree,  91- 

131 
cannot  issue  from  mere 

arbitrary  will,  105 
conceived   as   command- 
ment, 95-101 
imposed  by  natural  neces- 
sity, 5 


Law,  John  Austin's  philoso- 
phy of,  97-99 
made  to  seem  unjust  and 

odious,  96 

meaning  of,  unknown  to 
primitive  communi- 
ties, 4 

mode  of  behavior,  7-8 
natural,  the  first,  8 
not  derived  from  will  but 

from  reason,  81 
of    United    States    not 
commandments     so 
much  as  agreements, 
100 

subjects  to  and  makers  of, 
may  be  the  same,  99 
supremacy  of,  129-131 
ultimate  foundation  of,  to 
be  sought  in  virtue 
of  citizen,  81 

Law-making  power  regard- 
ed as  unlimited  devel- 
oped conception  of  sov- 
ereignty, 93-94 
Legislation  en  masse  hardly 

conceivable,  94 
Legislative  authority,  prop- 
er limit  of,  135-137 
Letters,   eminence   in,   ap- 
propriated  for   glorifi- 
cation of  the  State,  13 
Liberty,  the  right  to,  146- 

149 

Liberty  of  action,  impedi- 
ments to,  51-54 
Life,  human,  in  its  primitive 

stages,  3 
the  right  to,  142-146 


281 


INDEX 


Life,  the  State  exists  to 
guarantee,  144 

Lincoln,  on  the  Dred  Scott 

decision,  181-186 
on  the  rule  of  the  ma- 
jority, 188 

Locke,  John,  announces  and 
defends  the  sovereign- 
ty of  the  people,  66 

Louis  Napoleon,  subordina- 
tion of  anation  to,  190- 
191,  211-212 

Machiavellian  conception  of 

the  State,  24-27 
influence  of,  in  Europe, 
27-30 

Madison,  James,  on  the 
purpose  of  the  Federal 
Constitution,  174-177 

Majestas,  Jean  Bodin  on,  31 
or  sovereignty,  93 

Majority,  advocates  of  the 
unqualified  will  of  the, 
200-204 

the  only  true  sovereign  of 
the  people,  188-190 

Marshall,  John,  on  the  au- 
thority of  the  Supreme 
Court,251, 255,257-258 

Martin,  Luther,  on  the 
power  of  the  judiciary 
under  the  Constitu- 
tion, 250 

Mechanic  arts  appropriated 
by  the  State,  13 

Monarchy,  absolute,  more 
oppressive  than  feudal- 
ism, 54 


Monier,  on  the  Declaration 

of  Rights,  114 
Monopoly,  the  injustice  of, 

154-157 

relation  of,  to  law,  158- 
161 

Napoleon,  Louis,  and  the 
French  nation,  190- 
191,  211-212 

Napoleon  Bonaparte,  42^43 
Natural  man,  the,  a  con- 
stant  product   of  na- 
ture, 47-48 

Obligation,  application  of, 

to  experience,  140-142 

law  as  mutual,  135-177 

the  intuition  of,  137-140 

the  source  of  all  rights, 

1507152 

Official   oligarchy,    govern- 
ment by,  223-229 
Ogier,  Bishop,  on  the  divine 
right  of  princes,  37-38 
Omnipotence,  all  forms  of 
government  greedy  for, 
23 

of  Parliament,  252-253 
Order,  the  first  social  neces- 
sity, 25 

Parliament,  an  act  of,  and 

an  act  of  a  legislature, 

252-253 
Parliamentary  government 

recognized,  55 
Partition,  problem  of,  152- 

154 


282 


INDEX 


Partition,  injustice  of  mo- 
nopoly and,  154-157 
Party  platforms,  President 
Wilson  on  the  framing 
of,  224-227 

Paterson,  Justice,  on  dif- 
ference between  an  act 
of  Parliament  and  an 
act  of  a  legislature, 
252-254 

Personal  freedom,  abolition 
of  guarantees  of,  fa- 
vored by  many  in  Unit- 
ed States,  102-103 
Personal  interests,  desires 
and  volitions,  140- 
154 

Philip  II  of  Spain,  a  close 
student  of  Machiavelli, 
28 

Plebiscite,  a,  not  an  expres- 
sion of  real  opinion, 
211-212 

Political  progress  and  retro- 
gression, 55-58 
daily  renewal  of  energy 

essential  to,  57 
"inherent  law"  of,  56 
slowness  of,  50-55 
Politics,  war  the  first  hard 
school  for   science  of, 
8-9 

Power,  centralization  of,  6 
overcame  feudalism,  53 
supreme,  appeal  to  reli- 
gion for  authority  for, 
of  the  State,  34-39 
Jean  Bodin's  sovereignty, 
31-32 


Power,  transfer  of,  to  the 
people  and  the  French 
Revolution,  41-43 
violently      acquired     in 

Roman  Empire,  67 
"Prince,  The,"  of  Machia- 
velli, 25-28 
Prince,  the,  should  render 

account  to  no  one,  39 
Principles  and  personalities, 

217-220 
Producer,    how    much    to 

each?  152-154 
Producer  and  consumer,  re- 
lations of,  158-161 
Property,  alleged  commun- 
ity of,  162-164 
problem  of  partition  of, 

152-154 

the  right  to,  149-152 
Public  opinion,  relation  of 
reform  to,  210-214 

Reason,    authority   resides 

in,  82-84 
not  an  arbitrary  faculty, 

81 

objectively   entirely   im- 
personal, 81-82 
Reform,    alleged    constitu- 
tional barriers  to,  207- 
210 
relation    of,    to    public 

opinion,  210-214 
Religion,  appeal  to,  for  idea 
of  supreme   power   of 
the  State,  34-39 
appropriation  of,  by  the 
State,  15-19 


283 


INDEX 


Religion,  conflict  between, 

and  the  State,  17-19 
Revolution,    greater    num- 
ber of  modern  States 
offspring  of,  234-235 
Richelieu,  esteemed  Machia- 
veffl's"  Prince  "highly, 
28 

Right  and  wrong,  distinc- 
tion between,  78-79 
respected  by  savages,  138- 

139 

Right  to  command  does  not 

lie  in  mere  force,  32-34 

Rightfulness,      theory      of 

"rights"  a  denial  of, 

136-137 

Rights,  community  of,  121- 

123 

Constitution  as  a  guar- 
antee of,  169-171 
natural  and  inalienable, 

the  law,  128,  136 
natural  and  inherent,  143- 

146 
not  merely  personal  and 

transient,  137-140 
public  authority  founded 
on  respect  for,  118- 
120 
relation  of,  to  law,  123- 

128 
Robespierre,  and  the  culte 

de  la  Raison,  42 
Roman  emperors  apotheo- 
sized, 36 

Rousseau,  on  sovereignty  as 
an  attribute  of  the  peo- 
ple, 40 


"Ruler"  and  "ruled,"  per- 
sistence of,  9-15 

Rules  of  action  the  begin- 
ning of  law,  92-94, 
136 

Sixtus  V,  Pope,  makes  a 
digest  of  Machiavelli's 
"Prince,"  28 

Slavery,  conquered  tribe  re- 
duced to,  5-6 
Lincoln  on  the  Dred  Scott 

decision,  181-186 
Social   change,   first   great 

obstacle  to,  50-51 
Social  legislation,  demands 
of  advocates  of,  204- 
207 
Society,  only  the  few  reflect 

on  condition  of,  49 
totality   of   wealth   does 

not  belong  to,  163 
Sovereignty,  absolute,  myth 

of,  101-106 
a    denial    of    human 

rights,  115-120 
American    Revolution 
a   revolt    against, 
235-236 

conception  of,  as  inher- 
ent in  the  body  po- 
litic (Althusius),  69- 
71 

development  of,  93-94 
Jean  Bodin's,  30-32 
Rousseau's,  40,  66 
essential  to  existence  of 
State,   but  not  un- 
limited, 104 


284 


INDEX 


Sovereignty,  subject  to  limi- 
tations of  its  source, 
121 

popular,  doctrine  of,  has  a 
faulty  foundation,  80 
extinguished    by    the 
breath  of  the  dic- 
tator, 113 
French  Revolution  and, 

107-113 

genesis  of,  106-120 
State,  the,  cannot  be  per- 
mitted  to   be   unjust, 
105 

conception  of,  the  same 
to  Louis  XIV  and 
the  leaders  of  the 
French  Revolution, 
unlimited  power, 
109-113 
exists  to  guarantee  the 

right  to  Me,  144 
made  to  appear  the  ene- 
my of  the  common 
man,  96 

neither  an  embodiment  of 
force  nor  realization 
of  a  human  ideal,  91 
recognized    function    of, 

92,93 
right  of,  to  declare  war, 

145,  146 

sovereign  power,  but  not 
unlimited,  essential 
to  existence  of,  104 
true  foundation  of,  the 
community  and  cor- 
relation of  rights, 
120-123 


State,  the,  as  an  embodi- 
ment of  force,  3-44 

a  divine  institution,  35-36 

a  primal  reality  whose 
law  is  force,  8 

appeal  to  religion  for  au- 
thority for  supreme 
power  of,  34-39 

appropriation  of  religion 
by,  15-19 

aspires  to  control  activi- 
ties of  men,  14 

assimilating  power  of,  13- 
15 

chief  agent  of  human 
progress,  15 

emergence  of,  7-9 

force  the  effective  attri- 
bute of,  21-24 

government  by,  19-^21 

idle  theories  of  origin  and 
nature  of,  4 

Jean  Bodin's  conception 
of  sovereignty  of,  31- 
33 

Machiavellian  conception 
of,  24-30 

persistence  of  rule  of  force 
in  name  of,  9-12 

repudiation  of,  as  irre- 
sponsible power,  39- 
41 

transfer  of  power  to  peo- 
ple and  the  French 
Revolution,  41-43 

true    theory    of,  not    in 

power  alone,  43-44 
but  in  the  virtue  of  the 
citizen,  44 


285 


INDEX 


State,    the,    as    a    human 
ideal,  47-87 

a  responsible  entity,  73- 
75 

exists  de  jure  but  also  sub 
jure,  71-72 

has  authority  because  it 
is  a  moral  organism, 
70-71 

impersonality  of  author- 
ity and,  80-84 

legibus  solutus  est,  74-75 

"natural  man"  and,  47- 
48 

parliamentary  govern- 
ment,recognized,  54- 
55 

principles  of,  justified  be- 
fore the  bar  of  rea- 
son, 87 

slowness  of  political  pro- 
gress, 50-55 

sovereignty  conceived  as 
inherent  in  the  body 
politic,  69-72 

spontaneously  came  into 
being,  48 

substitution  of  thought 
for  force,  58-60 

the  foundation  of,  85-87 

the  seat  of  public  au- 
thority, 61-65 

the  true  nature  of  au- 
thority, 7^79 

theory   of   divine   right, 

65-68 
Status,  social,  development 

of,  5-6 
Stranger,  distrust  of  the,  4-5 


Subordinates,  authority  con- 
ceded to,  6 

Supreme  Court  of  United 
States,  alleged  judicial 
oligarchy,  257-261 
alleged  usurpation  of  the, 

251-256 
constitutional  provisions 

for,  248-251 
James  Bryce  on  the,  265- 

266 

Martin  and  Patterson  on 
the  authority  of  the, 
251-254 

Symbols  of  the  power  of  the 
State,  11 

Talon,  Omer,  on  the  divine 

right  of  rulers,  38 
Thought,  not  readily  trans- 
formed into  reality,  50 
substitution  of,  for  force, 
58-60 


United  States,  laws  of,  not 
so  much  command- 
ments as  agreements, 
100 

United  States  Supreme 
Court.  See  Supreme 
Court. 


War,  first  hard  school   for 

science  of  politics,  8-9 

offensive  and   defensive, 

right  to  declare,  143- 

144 


286 


INDEX 


Webster,  Daniel,  on  the 
judicial  power,  267-268 

Wilson,  James,  on  the  pow- 
ers granted  to  the  Su- 
preme Court,  250 


Wilson,  President,  on  fram- 
ing party  platforms, 
224-228 

Wolf,  sponsor  for  the  State, 
11 


(1) 


\ 
\  \ 


\ 


640 

Hill,   David  Jayne. 
The  People's  Govenment. 


Annex. 
SCRIPPS  INSTITUTION  LIBRARY 

UNIVERSITY  OF  CALIFORNIA 


